- Keep your grounds to an absolute minimum. As a general rule, the longer the Grounds of Appeal, the less likely they will impress the EAT Judge that considers them on the sift. However annoyed you (and/or your client) may be with the decision of the ET, keep it short.
- Although it is not possible in all cases, do your best to identify an error of law that the EAT Judge is likely to be “interested in”. For example, is this a point that the EAT has previously identified as an area where there are conflicting authorities or the need for further guidance?
- Avoid Grounds that:
i) will make no practical difference to the overall outcome (i.e. will not alter the compensation payable or are purely academic in terms of the ET’s conclusions);
ii) are “makeweight”, that are not your main challenges but are there more for completeness. These will detract from your stronger points and increase the chances of a Preliminary Hearing being held. They are unlikely to get anywhere. Have the courage of your convictions and make your best points only.
- Keep the Grounds as crisp as possible. You should aim to encapsulate each Ground in no more than a sentence or two, clearly identifying the Ground of Appeal.
- Set out the Grounds in the order in which they appear in the Judgment.
- Grounds should be based on arguments you ran at the Tribunal, unless they can be considered truly to amount to points that go to jurisdiction and so are engaged in each case, regardless of whether raised by the parties.
- Do not be tempted, alongside your main grounds, to have a stab at perversity “just in case it gets somewhere”. Perversity appeals (which will need to be accompanied by a preferably agreed note of the evidence relied upon, assuming it is not in the Judgment) should be reserved for exceptional cases where you can truly say that no Tribunal would have made finding of fact x given evidence y.
- Do not cite cases in the Grounds of Appeal unless you really can’t do it by reference to the statute alone and it is absolutely essential to describe the error of law relied on and the case can fairly be regarded as precedent setting (e.g. The ET did not apply the test for causation in respect of whistleblowing set out Kuzel v. Roche Products Ltd.  ICR 799).
- You should not normally need to prepare a Skeleton Argument at the Grounds stage. That can be saved for the Hearing, when it definitely will be needed. The EAT Judge will thank you (figuratively) for requiring him or her to consider Grounds of Appeal only at this stage. An early Skeleton should be reserved for your most complex cases (e.g. where the Judgment is expressly long or difficult to follow.)
- For further guidance, you must look in each case at Langstaff P’s Practice Statement at https://www.judiciary.gov.uk/publications/practice-statement-notices-of-appeal-and-skeleton-arguments. Although first published in June 2015, this seemed to go under a lot of people’s radar.
Sam Healy regularly appears before the EAT in England and Scotland. For a list of some of his successful appeals, view his profile here.