An Unappealing Prospect

08 Jul 2011

The very nature of any litigation means that at least one party will leave the Hearing in a very disgruntled mood after receiving the Judgement; however, once the immediate shock has passed, most people just want to put the whole process behind them.


As anyone who has been in the unfortunate position of losing an Employment Tribunal will know, appealing against a Judgment is not simple.  Judgments can only be challenged under appeal if there has been a mistake in law, not in fact.


By way of an example, a Tribunal finding that a woman has been dismissed because she was pregnant, even if the employer maintained it was not even aware of the pregnancy, would be very difficult to appeal.  If the same Tribunal instead held that pregnancy is a fair reason for dismissal, there would be a ground for an appeal.


On top of the practical difficulties faced in appealing an Employment Tribunal Judgment, there is also a significant cost in legal fees.


In view of all this, you might assume that appeals are very rare and only pursued in the most worthwhile cases.


In fact, looking at some recent Employment Appeal Tribunal decisions, you would be forgiven for wondering whether some litigants (or perhaps their lawyers!) have more money than sense.


In the first case, Publicis Consultants v O’Farrell, the EAT was asked to consider whether a payment made to an employee and described as an “ex gratia payment” was, in fact, an ex gratia payment or was instead a payment in lieu of notice.  In a shocking development, the EAT decided that the “ex gratia payment” was an ex gratia payment.


In the second case, Tasneem v Dudley Hospitals, the EAT described itself as “mystified” by an appeal that suggested Dudley Hospitals were in breach of contract by failing to make Mr Tasneem aware of the opportunity to apply for a new contract.  Mr Tasneem maintained there was a contractual breach, despite the fact that he not only was aware of the opportunity to apply for the new contract, but accepted that he had chosen not to apply for it.


Mystifying indeed.