Basildon & Thurrock NHS Foundation Trust v Weerasinghe (Practice and Procedure)

A cross-appeal in the Employment Appeal Tribunal is a challenge to a decision adverse to the cross-appellant, made by the same Employment Tribunal, on the same date and occasion as the decision challenged by the primary appeal. It need not concern the particular issue raised by the primary appellant or be intrinsically linked to it.

A valid cross-appeal is brought in response to the primary appeal and may be filed within the period directed under the Rules. A decision made at a separate hearing or on a different occasion, such as a distinct quantum decision, is a separate appeal subject to the ordinary time limit.

The claimant succeeded before the East London Employment Tribunal in claims including unfair dismissal, detriments for protected disclosures, and unfavourable treatment arising from disability. Other claims, including indirect disability discrimination, were dismissed.

The Trust appealed only the finding under section 15 of the Equality Act 2010. In its response, the claimant advanced a cross-appeal concerning the dismissed indirect discrimination claim. The Trust appealed the Registrar’s ruling that the cross-appeal was valid and in time.

The central issue was whether a cross-appeal must challenge the same particular decision as the primary appeal, or may challenge another adverse decision made in the same Tribunal proceedings on the same occasion.

1. Appeal dismissed. The claimant’s challenge was a valid cross-appeal and had been brought within the time allowed by the order requiring a response and any cross-appeal.

2. Under section 21(1) of the Employment Tribunals Act 1996, an appeal lies on a question of law arising from a tribunal decision or proceedings. Rule 6 of the Employment Appeal Tribunal Rules 1993 does not define “cross-appeal”, but its structure distinguishes resisting an appeal on alternative grounds from bringing a cross-appeal.

3. A cross-appeal is an appeal against a decision adverse to the party bringing it. It need not be confined to the individual decision or issue attacked by the primary appellant, and it need not be contingent upon the primary appeal succeeding. A party cannot appeal a decision in its favour.

4. The necessary limit is temporal and procedural. The adverse decision must have been made by the same Tribunal, on the same date and occasion, as the decision challenged by the primary appeal. A challenge to a decision made at a separate hearing or on a different occasion is a separate, freestanding appeal and remains subject to the ordinary time limit.

5. Asda Stores Ltd v Thompson & Ors (No 2) [2004] IRLR 598 was not authority for restricting a cross-appeal to the same discrete issue or part of a judgment. Properly understood, it concerned decisions made on different occasions.

6. The costs application was refused. Although the appeal failed, it raised an arguable and previously unresolved question about the limits of a cross-appeal. It was therefore not shown to have been unnecessary, improper, vexatious or misconceived within Rule 34A of the Employment Appeal Tribunal Rules 1993.

• Employment Appeal Tribunal: the Trust’s appeal from the Registrar’s order was dismissed: [2015] UKEAT 0397_14_1905.
• East London Employment Tribunal: the claimant succeeded on certain claims, including unfair dismissal and disability-related unfavourable treatment, while his indirect disability discrimination claim was dismissed. No citation is stated in the judgment.