Changes to the employment appeals tribunal practise decision ..
..and some important pointers
The EAT has produced an updated practice direction to have effect from 22nd May 2008.
There is no radical change; however, it will be useful to those making an appeal, to know of the changes, which are outlined below.
3.7. Applications to extend time
Jurkowska v HI Mad[2008] EWCA Civ 321 has added to the list of cases that the EAT will have regard to when considering an application to extend time.
6.1. Retention of hearing papers
The EAT will not retain bundles used at one hearing for later use. This expands on the previous rule that the EAT would not retain bundles used at a preliminary hearing for a full hearing.
6.6. Deadlines for bundles
The time-limit for providing hearing bundles for full-hearings has been reduced from 35 days from the seal date of the order to 28 days.
9.18. Case Categories
The EAT separates cases into groups according to their complexity and legal importance. The four categories have been reduced to three.
- P: cases that should be heard in the President’s list
- A: complex cases or those raising legal points of public importance
- B: other cases
There was previously a category C, which seems to have been subsumed by B.
9.21. Fast Track Cases
Category B cases that should take 2 hours or less are now eligible to be assigned to the Fast Track. This reflects the removal of category C.
13.9.2. Deadlines for skeleton arguments
Skeletons arguments for full-hearings must now be provided 14 days before the hearing, down from 21 days.
14.6. Copies of authorities
Authorities in preliminary hearings; appeals against orders by the Registrar and 3(10) hearings must be provided at least 10 days before the hearing. These could previously have been provided on the day of the hearing.
18.1. Costs Applications
The old rule on cost applications has been removed. This part of the practise decision is somewhat complicated. The new rule at 18 refers to rule 19, which refers back to rule 18.3, which doesn’t deal with time limits. Instead, guidance is given at s34(4) of the Employment Appeal Tribunal Rules 1993. This requires that applications for costs be made within 14 days of the order determining the appeal being sent to the parties.
The sensible option, therefore, would be to make the application in advance as before. As well as eliminating the time-limit issue, this will avoid delay, since a judge will be available then to hear it when the judgment is handed down.
The exception to this rule is when you want to see the judgment before deciding whether to apply for costs. For example, if your application will be on the basis that the other-side’s appeal was misconceived it will be fruitless if the judgment begins “This was a difficult case, with strong arguments being made by both sides.”
20.1. Applications for review
The 14 day time-limit on applying for a review, previously found only in the rules, is now explicitly stated in the practice direction.
21.1. Appeals from the EAT
Permission to appeal to the Court of Appeal should now be sought from the EAT within 7 days of their judgment or from the Court of Appeal itself within 21 days.
This has the effect of shorting the time to apply to the EAT while increasing the time to apply to the Court of Appeal. Previously the time-limit for both was 14 days. This brings the practice direction into line with the Civil Procedure Rules.
22. Conciliation
A new section on conciliation has been included. It requires the parties to consider conciliation by ACAS if directed to do so by a judge and to report on the steps taken to achieve conciliation.
And now some advice:
Ask nicely and you may receive
As in all negotiation, if you want the other side to do something (for example, disclose some documents to you) see if they will do it voluntarily before you apply for a tribunal order requiring them to do so. Why? Sometimes respondents will disclose documents on request that the tribunal wouldn’t order them to disclose. So if you go straight to the tribunal you may only be permitted to see documents that the tribunal thinks reasonable. You certainly can’t lose this way - once the tribunal has refused you an order, the other part is very unlikely to say ‘Oh well, it doesn’t matter - have it anyway.’
Don’t skip the first stage just because time is short. If there isn’t time to give them a reasonable period to comply before you apply for an order, ask them to let you know by return whether they are willing to comply so that you can make your application promptly if they are not. If you don’t get an answer, you can always ring them up and ask them what they plan to do. If they say they haven’t decided yet, then you may have to say something to the effect ‘In that case I’ll have to ask the tribunal for an order now because time is short, but of course if you comply with my request meanwhile I will withdraw the application.’
This is a particular instance of the more general rule that - whatever you’re after - it’s better try charm first, and resort to aggression or compulsion, if appropriate, only after charm has failed. You can’t credibly backtrack from aggression to charm, but you can always escalate from charm to aggression if you have to.
Pushy parents
If you are bringing a claim against your employer for dismissing you, you will almost certainly be claiming compensation for lost earnings.
However, mothers of young children will often suffer the greatest losses. If you have lost a responsible and demanding job soon after having your first child, you may have real difficulty getting or keeping another job at the same level. This is because it is one thing winning the respect of an employer in a pressured environment as a single twenty-something who is able to work all hours, go drinking with colleagues in the evening, and be back at your desk at 7.30 am the next day. It is quite another pulling off the same trick through morning sickness, ante-natal appointments, maternity leave, unreliable child-minders, school hours, homework and childhood illnesses. If you have lost your job at this critical time of your life, you may find that you have been pushed onto a ‘mummy track’ that can affect the rest of your career.
The same may be true, of course (barring morning sickness), if you are the father of a young child - if you really do act, when push comes to shove, as if your child is as much your responsibility as its mother’s.
Crossexamination
If you are representing yourself in the employment tribunal, re-examinationis problematic.
It may help if you ask the tribunal’s permission to have a blank notebook and a pen with you when you are cross-examined first time around. Why? Because you have to play two parts at once – witness and representative. If you had a representative, she would be busily taking notes while you were cross-examined, and in particular noting points to return to in re-examination. It is hardly fair if you are expected to commit any points you want to return to memory under all the stress of giving evidence. Point this out - and mention the overriding objective for good measure - and the tribunal may grant your request.
Conditionalorders
A tribunal can make an order conditional, for example “Unless you do that, this will happen”.
Conditional orders are usually made when a party has failed to comply with previous orders. They are a way of the tribunal saying “This is your last chance. Sort this out, or else.” If you are the subject of one of these orders, it is vital that you comply with it.
If it really is impossible to comply with the conditional order, make an application to vary it before it takes effect. This should be done in sufficient time that the tribunal can make a decision to change the order before the deadline for compliance. | 
