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 decision.

Grounds of appeal  

There are a number of grounds on which an aggrieved party may challenge a decision of an Employment Tribunal:

  1. where the Employment Tribunal asked itself the wrong legal question or applied the wrong legal test;
  2. where the Tribunal fails to give adequate reasons for its decision;
  3. where the Tribunal failed to exercise its discretion or exercises discretion on the wrong principles;
  4. where the aggrieved party did not receive a proper hearing from the Tribunal on the ground that the Tribunal was biased;
  5. 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; 
  6. 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 [2016] 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 allowed.”          

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 inconsistent judgments’.   

Decisions of higher Courts are binding and must be followed, but that is a update for another day...