In my last blog I wrote about fact finding in the Employment
Tribunal and noted that the Judge is well placed to make a decision
having observed the manner in which the witnesses give evidence.
But how can an aggrieved party challenge an adverse
It is not usually possible to challenge the findings of the
Judge on matters of credibility or reliability. If, in a disability
discrimination claim, an HR witness said in evidence that he did
not know that the Claimant was disabled at the relevant time
(because, say, the Claimant had been unco-operative in relation to
obtaining an Occupational Health report) and the Judge believed
that testimony then it is very difficult for the Employment Appeal
Tribunal (EAT) to alter that finding.
An appeal to the EAT or any higher court is always restricted to
questions of law rather than issues of fact. The aggrieved party
cannot appeal simply because he disagrees with the Judge's
Grounds of appeal
There are a number of grounds on which an aggrieved party may
challenge a decision of an Employment Tribunal:
where the Employment Tribunal asked itself the wrong legal
question or applied the wrong legal test;
where the Tribunal fails to give adequate reasons for its
where the Tribunal failed to exercise its discretion or
exercises discretion on the wrong principles;
where the aggrieved party did not receive a proper hearing from
the Tribunal on the ground that the Tribunal was biased;
where there was no evidence to support a finding of the
Tribunal. In my example above, there may be no evidence to support
the finding that the Claimant did not co-operate with his employer
in relation to an Occupational Health report;
where the decision is perverse (i.e. where it is fundamentally
wrong or flies in the face of properly-informed logic).
It is beyond the scope of this blog to analyse these grounds of
appeal in detail, but as an example, take number 2 above. The
reasons for a decision of the Employment Tribunal must "state
the findings of fact made in relation to an issue, concisely
identify the applicable law and explain how that has been applied
to those findings in order to decide the issues" (Rule 62(5)
of the Employment Tribunals Rules of Procedure 2013). It follows
that there is a requirement for reasons to be given and parties are
entitled to be told why they have won or lost.
The recent case of Banaszczyk v Booker Limited  IRLR 273
highlights the application of this rule. Quoting from HH Judge
Richardson, giving judgment in the EAT, "... I have found it
impossible to discern from his reasons why the Employment Judge
decided the case as he did. His final paragraph amounts to no more
than a conclusion without reasoning...The Employment Judge's
Reasons do not reach the minimum standard required by law; and
therefore the appeal must be
Finally, it is important to note that if an aggrieved party
argues successfully one of the grounds above, then the EAT will
overturn the decision of the Employment Tribunal. The EAT can look
at other decided cases for guidance. It is not bound by decisions
at EAT level but as a matter of practice and in the name of
consistency will follow them unless there are 'exceptional
circumstances' or where there has been 'previous
Decisions of higher Courts are binding and must be followed, but
that is a blog for another day...
In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
Case law concerning the Agency Worker Regulations remains limited. We recently advised a recruitment business involved in a dispute with a "temp" and a hirer regarding who was liable for an alleged breach of AWR Regulation 5.
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