The “Day After” the Tribunal
Losing an Employment Tribunal (ET) case is an exhausting, emotional experience. After months, sometimes years of preparation, and often several years after being ‘wronged’ at work, receiving a judgment that doesn’t go your way feels like a door slamming shut.
But in the legal world, a “Final Judgment” isn’t always final. If the tribunal reached its conclusion through a mistake in law, the Employment Appeal Tribunal (EAT) exists to set the record straight. However, the EAT is a very different beast than the ET. It is not a “re-do” of your trial; it is a forensic audit of legal logic.
The Odds: Understanding the EAT Landscape
Before you commit to a 2-to-3-year journey, you need to understand the statistical reality. The latest data (2024/25) shows that the EAT is becoming busier, with a 10% increase in appeals lodged.
| Appeal Stage | The Success Gap (Claimants vs. Employers) |
| Preliminary Hearings | 31% of employee appeals are dismissed vs. only 15% of employer appeals. |
| Full Hearings | 57% of employee appeals are dismissed vs. 41% for employers. |
These numbers aren’t meant to discourage you; they are a warning. The higher dismissal rate for employees often stems from a lack of “objectivity” and a misunderstanding of what the EAT actually reviews.
My Track Record: 12 Grounds, 10 Permissions, 1 Major Victory
I don’t just study these stats; I live them. My approach to the EAT is built on a decade of evolution, from appearing as a Litigant in Person to now representing clients as a Solicitor-Advocate.
Across two major cases for claimants, I have advanced 12 grounds of appeal.
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10 of those 12 were granted permission to proceed at the “sift” or Rule 3(10) stage.
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In my most recent case (Kankanalapalli v Loesche Energy Systems [2026] EAT 49), I represented Mr. Kankanalapalli from the ET through to the EAT and won on all four grounds drafted in the original Notice of Appeal.
The difference between my early days and my recent success comes down to understanding how EATs operate better, and then applying myself to it with forensic objectivity.
The hard questions you need to ask yourself before embarking on an EAT Appeal
Did you argue the point below?
Appeals in the EAT are in some respects more difficult to win, than say, an appeal in a civil court. Primarily, because EAT looks for clear evidence that a point you are raising in an appeal was actually taken in the lower tribunal. Essentially you are to prove that the tribunal had the point before them, failed to consider it, or reached a wrong decision in law. Where the answer to this is not clearcut, at the minimum you will need to demonstrate that the thrust of the point was live before the employment tribunal (ET).
If you haven’t taken the point below and the thrust of the point wasn’t live, the possibility of an EAT judge entertaining that point are slim and it would be for exceptional reasons. Of course, this problem can be mitigated if you are able to frame the ground of appeal in a manner that corroborates with how the case was put in the ET below. This does require serious legal research and analysis, and the notice of appeal will need to be aligned.
Was the decision open to the ET?
EAT exists to review if the ET has conducted itself in a lawful manner in reaching a decision. There is generally a broad range of discretion that ETs have. If on the facts as the ET found them, one possible conclusion was in fact the decision it reached – it is not very easy to win on appeal. Often, appellants seek to persuade the EAT that a different conclusion was possible, but that is not the test for EAT deciding that the ET erred.
This is quite a difficult exercise to do independently especially if you are the protagonist in the ET’s judgment. You have seen the facts from your viewpoint already, and it’s very difficult to then try to see it again from a neutral standpoint and come to a conclusion that the ET’s answer may have been open to it. There is possibly no substitute to a fresh pair of eyes.
Are you arguing errors of fact or errors of law?
Generally, EAT will not reopen findings of facts made by the ET. In fairness, ETs are pretty good in making findings of facts. One of the few reasons an EAT might intervene is if there is no evidence to support a finding of fact.
The distinction between a finding of fact and a finding in law is widely misunderstood. Infact, some issues are mixed issues of fact and law. Generally speaking, a finding of fact is something you can recall i.e. this action taken by someone, that email written by someone, and so on. A finding in law is when that fact is incorporated in a legal wrapper of some kind. For example, lets consider the statement “once the offer was accepted, a contract was concluded”. In this example, the phrase ‘a contract was concluded’ would be a finding in law. A good notice of appeal will focus on errors of law, and them alone.
Are you reading the ET’s judgment forensically?
It is all too common for an ET to get some bit of their analysis wrong. However, the judgment is expected to be read as a whole. If standing back, you can see what the ET was saying, even though it got some detail wrong, that ET judgment will likely stand.
Once again, where you already have an inside-out view of the case having lived its facts, it is very difficult to stand back and then satisfy yourself that the the judgment may infact be right.
Did you take advice?
Many ET hearings and EAT full hearings are led by claimants acting as LiPs. As I’ve indicated above, I too have in the past. However, to assess your prospects of success, you need objectivity and the ability to stand back from the judgment. Although claimants can get free advice via the Employment Law Appeals Advice Scheme (ELAAS) at the preliminary hearing stage, the scope of the service is very limited, in that you meet the ELAAS representative on the morning of the PH or the Rule 3(10) hearing. Often, where you have drafted your own notice of appeal, and the judge on sift has broadly rejected the grounds, the ELAAS representative has little to go by. On the other hand, a well-considered notice of appeal ensures that the judicial comments on sift can be more pointed, and this in turn allows the ELAAS representative to better amend the grounds, if necessary, before seeking to persuade the Judge at the hearing.
There is no substitute to taking legal advice on whether you have a basis for bringing an appeal, and what the best grounds ought to be. What I’ve learnt the hard way is that it’s quite important to be judicious about what you are arguing – and that often depends on what you consider that the Judge already ought to know. For anyone taking on an EAT appeal for the first time, this is not a skill that can come naturally. You’ve never been there before to know exactly what to say, and when to stop.
Conclusion
Overall, a decision to bring an appeal is not one to be taken lightly. An appeal can set you back by between 2 and 3 years, and keeps you emotionally connected with the case for all that time. If you are going to venture into one, you are better off doing so on an informed basis.
Ready to find out if your ET judgment holds water?
Contact me at amit@dn-solicitors.co.uk for an initial assessment.
Initial assessments are conducted under a fixed fee of £750 + VAT (for most cases, unless the judgment is unusually long). In an initial assessment I will:
- Review the ET’s judgment for errors of law. Identify themes that may succeeed on appeal.
- Have a brief consultation with you (20 minutes) to explore these themes further.
- Subsequently, provide you with email advice on the prospects of appealing.
If you instruct me to draft the grounds of appeal, this will be at a further fixed fee of between £1,000 and £2,000 + VAT.
I can also represent you at any subsequent preliminary hearing or Rule 3(10) hearing, however, you may wish to avail of the ELAAS free service (subject to their availability to assist).
I can also represent you at the EAT Full Hearing.
Disclaimer: This article is for informational purposes only and does not constitute legal advice