Can an appellant amend a Notice of Appeal in a rule 3(10) hearing?

In order to appeal a Tribunal decision to the Employment Appeal Tribunal (EAT) an appellant must serve a Notice of Appeal.  A judge or Registrar will review the Notice of Appeal and decide whether the appeal can be heard.  If the judge or Registrar decides that there are no reasonable grounds for appeal, they will issue the appellant with a notification of reasons explaining why their appeal will not be heard.

If an appellant wants to appeal this decision, they can issue a fresh Notice of Appeal which can include new grounds not set out in their original Notice of Appeal.  They can also request an oral hearing to persuade the EAT that there are grounds to hear the appeal and this hearing is called a rule 3(10) hearing.

In Readman v Devon Primary Care Trust the appellant requested a rule 3(10) hearing and was represented by Counsel who raised new grounds of appeal which were reasonably arguable on a point of law.  Counsel sought to amend the Notice of Appeal accordingly.  The EAT allowed the appellant to amend the Notice of Appeal stating that:

‘It will generally be in the interests of justice that applications for permission to amend at a rule 3 (10) hearing, in circumstances such as I have just outlined, should be granted, even if the point is one that has not been pleaded in the original notice of appeal… provided always, of course, that the point is reasonably arguable.’

The judge went on to say that a rule 3(10) hearing is often the first time an appellant has the benefit of legal advice (an unrepresented appellant can use the Employment Lawyers Appeal Advice Scheme) and often their new representative will raise reasonably arguable points of law that the appellant has not spotted.  The only prejudice that the judge could see in allowing an appellant to amend a Notice of Appeal was the delay in the hearing of the appeal.  The judge did not however consider this to outweigh the right to have an appeal determined.

Respondents will now find it difficult to apply to set aside a decision to amend a Notice of Appeal.  In fact, the judge in this case pointed out that Respondents would be landed with the cost of two hearings rather than one if they do apply to set aside such a decision.