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Employment Appeal Tribunal has Strict Filing Rules
Failure to Comply can Lose any Appeal
If going through the expense & stress of an employment tribunal isn’t bad enough, making an appeal to the Employment Appeal Tribunal (EAT) can only add to that infinitely. From the date a judgment is issued, a potential appellant has 42 days to decide to make an appeal, identify the legal grounds for appeal, and file the appeal. Put in those terms, it may not sound a particularly difficult exercise – and it shouldn’t be – but filing the appeal alone can be a delicate exercise.
Appealing to the EAT
The appeal form to the EAT is much shorter than the ET1 & ET3 (the claim & response to the employment tribunals), but unlike the former, an appellant is required to file a lot of other documentation at the same time. And it’s sometimes possible that the deadline – 42 days after the decision was sent to the parties – can get confused. (And that’s before considering that the deadline for the EAT is 4pm on the 42nd day, unlike the employment tribunals where deadlines fall at midnight.)
For aggrieved employees, bringing a claim to an employment tribunal can be relatively straightforward: they can file a claim online, explaining in layman’s terms why they consider they were treated unfairly, and the process is started; if they need to amend or expand on the grounds of their claim later, permission is normally granted. And it’s not unusual for an Employment Judge to permit a late claim or response or other compliance with an order, so you can rarely be certain when a time limit has been met or missed, or what influence this might have on the outcome of a case.
But when events go to the EAT, you’re dealing with a much more formal regime, with a much stricter expectation of compliance with the rules. In the EAT, the rules for filing an appeal are normally enforced strictly – non-compliance with a rule can (and normally does) see a party restricted from participating further… and for an appellant (the party wishing to appeal) that can mean the case goes no further at all.
Cloud Computing Is Here – But Not in Some Worlds
In these days of cloud computing, even email may seem archaic for some as a means to share documents. To file an appeal with the EAT, an appellant has three options to serve the necessary documents:
- Post – the most traditional means, but with only two locations (one for Scotland, based in Edinburgh, and one for England & Wales, based in London);
- Email – the most practical option… except this isn’t as easy as it may appear;
- Fax(!) – turns out that people still do send faxes (we received a fax of a typed letter recently, the sender explaining they don’t use email or other more convenient options at all).
These are all perfectly feasible options, and should ensure anyone wishing to appeal an employment tribunal judgment has a reasonable opportunity to lodge an appeal, but it’s not so straightforward as that:
Unless you can deliver the papers in person, relying on the post means trusting a courier (including the Royal Mail) to actually deliver your important documents on time. Particularly if you leave things to the last minute, there can be no certainty they arrived until the Royal Mail tracking service acknowledges even the delivery was made, and the time of this.
Of the three options, email seems the most convenient option in the modern world. Except it isn’t as easy at that with the EAT: like many government services, the Employment Appeal Tribunal has a limit on the size of an email it will accept, including attachments. When you need to include a copy of the claim form, response, judgment[1], the appeal form, and perhaps any application for review, the size of the files you need to send to the EAT may mean the email exceeds its limit to receive files – the email will bounce, undelivered, the package is too big for the mailbox. But unlike when your local postman encounters such a problem, leaves you a card, and brings the package back to the depot, the EAT will make no record of this delivery – it was only an attempted delivery after all, the documents you need to file weren’t delivered to the EAT.
The way around this is to send multiple emails, with limited attachments in each email, so all the documents are actually served – even if not in package.
Or you could use a fax machine – if you can find one. And if you can find one, you have to hope that you don’t fall foul of the historical problem the employment tribunals used to have, where lines were engaged, or the machine (at their end) ran out of paper, and a claim wasn’t lodged on time. (It did used to happen, although neither is likely to be a serious problem these days.)
Don’t Leave it too Late, or to Amateurs
While an obvious & practical means of filing lots of large documents at once, what you cannot do when filing an appeal is, instead of including an attachment, is send a link to a hosted file – a file available on a server elsewhere, using cloud computing, the services provided by the likes of Dropbox, Google Drive, Microsoft One Drive, Amazon Cloud, your own server, or any other facility. You have to deliver the documents, and if electronically, email a copy of these to arrive onto the EAT’s server (by 4pm on the 42nd day), not a link to them.
The difference is summed up simply by the fact that the EAT either has the documents in its possession or control, or it has a means – subject to an internet connection – to access the documents. The former means the documents are served; the latter not so.
And as capable as Ms Helen Iya-Nya may have been in her preparation in the case of Majekodunmi v City Facilities Management, she failed to email several documents, even after she was advised by a clerk by email the evening before the deadline that they could not get documents from external drives/shared locations: an email lodging an appeal with the EAT was filed a day ahead of the deadline, but a reply was sent asking for the documents to be resent as attachments to an email (although experience suggests that several emails will be accepted, as long as all documents are received by the EAT by the deadline). These were never sent again, and the EAT’s Registrar ruled that the appeal was not lodged, a decision upheld on appeal by HHJ Eady.
Employment Tribunals can be expensive to defend – although they don’t always need to be, and against the risk of a large judgment against your business, it costs nothing to get a quote (and even just putting the defence on the right footing with a well-prepared ET3 (the response) can help enormously). An appeal to the EAT costs £400 just to file, but before that you at least need to get your paperwork in order. An expensive lesson for Mr Majekodunmi, but not necessary if your business has had a judgment against it – just don’t leave it until 40 days before contacting us, as the form is below, and you’ve got options to send us attachments at our contact page. .
[1] As a judgment is normally signed, sent out by post, when filing with the EAT, a scanned copy of this is lodged; this practice is acceptable – as long as the file actually arrives by the deadline.