On 21 September 2023, the President of the Employment Appeal Tribunal, Eady J, issued Practice Direction of the Employment Appeal Tribunal (2023) (2023 Practice Direction) under s 29A Employment Tribunals Act 1996. The 2023 Practice Direction applies to appeals commenced on or after 30 September 2023, as well as to appeals commenced before that date in respect of steps that take place on or after it, for England, Wales and Scotland. The 2023 Practice Direction follows the making, earlier in September, of the Employment Appeal Tribunal (Amendment) Rules 2023 (EAT Amendment Rules 2023), which also take effect from 30 September and amend the Employment Appeal Tribunal Rules 1993 (EAT Rules 1993) (see FC Feature 11 September 2023). The 2023 Practice Direction will replace the Practice Direction (Employment Appeal Tribunal – Procedure) 2018 and the EAT Practice Statements of 2005 and 2015.
The 2023 Practice Direction is intended to deal comprehensively with the EAT's essential procedural requirements. The 2023 Practice Direction contains guidance on a number of topics, including:
- deciding whether to appeal a decision of the employment tribunal;
- submitting such an appeal, including:
- the application and calculation of time limits;
- the grounds of appeal;
- E-Filing, which is the EAT's preferred method for lodging an appeal and sending any other document;
- the judicial 'sift', in which a judge considers each ground of appeal and decides whether it discloses a reasonable ground for bringing the appeal (see Employment Appeal Tribunal, Q&A here);
- preliminary and full hearings, as well as those under r 3(10) EAT Rules 1993 which may follow where a judge has expressed the opinion that there are no reasonable grounds for some or all grounds of an appeal in a rule 3(7) letter (r 3(7));
- case management, including applications and directions, and in particular in relation to applications for:
- permission to amend certain documents;
- urgent hearings or consideration;
- adjustments because of a medical condition or disability;
- postponing a hearing;
- reviewing a previous EAT decision;
- restrictions to the open justice principle (see Employment Appeal Tribunal, Q&A here);
- viewing or obtaining copies of documents (this concerns the right of members of the public to make such an application);
- adding or removing a party;
- relying on material that was before the employment tribunal, as well as asking it questions;
- relying on evidence or an argument that was not before the tribunal;
- remote hearings, as well as observing hearings remotely; and
- disposal of appeals and cross-appeals by consent;
- responding to appeals and cross-appeals;
- documents for full hearings, including skeleton arguments and authorities (on which there is a general limit of ten);
- costs; and
- appeals from the EAT, including (in England and Wales) direct appeals to the Supreme Court under ss 37ZA and 37ZB Employment Tribunals Act 1996.
The 2023 Practice Direction also deals with national security proceedings and other appeals (such as appeals from the Central Arbitration Committee) and direct applications to the EAT.
Annexed to the 2023 Practice Direction are new forms to be used for applications for:
- a r 3(10) or r 6(16) EAT Rules 1993 hearing (which, respectively, are applications for a hearing to challenge (i) a rule 3(7) letter in which a judge has expressed the opinion that there are no reasonable grounds for some or all grounds of an appeal; and (ii) a rule 6(12) letter (r 6(12)) in which a judge has expressed a similar view in relation to a respondent's cross-appeal) (Annex 1); and
- directions or orders (Annex 2).
First published on the Employment News Service on 22 September 2023.
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