Monday 13 July 2015

EAT procedure: What is a cross-appeal?

Thanks to Miranda de Savorgnani of Outer Temple Chambers for preparing this case summary
Does a cross-appeal, which could be brought as an independent, free-standing appeal, have to be brought within the ordinary 42-day time limit for appeals?

No, held the EAT (unsurprisingly) in Basildon & Thurrock NHS Trust v Weearsinghe.

A cross-appeal is an appeal against a decision made on the same occasion before the same employment tribunal as the decision which is under appeal.

In this case, the employment tribunal upheld some of the employee's claims, and rejected others.  The employer appealed in relation to one finding.  Within the 14-day time limit to file a Respondent’s notice (but outside the 42 days to file a Notice of Appeal), the employee cross-appealed on one of his unsuccessful claims. The Hospital Trust argued that the cross-appeal, which was not contingent upon the matters raised by the appeal, should have been brought with the ordinary 42-day time limit under Rule 3 of the Employment Appeal Tribunal Rules 1993, and was therefore out of time.

Langstaff P dismissed this argument. First, the ordinary and normal meaning of 'cross-appeal' does not restrict the challenge to contingent matters. Second, practice to date did not support any such restriction. Third, policy considerations reinforced his decision. The fact that a cross-appellant is de facto granted extra time to appeal helps to preserve the balance between the parties and enables a dispute to be fairly resolved, while at the same time allowing for the possibility of settlement.

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