This guide is maintained as a current resource for July 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Comprehensive guide to errors of law in Employment Tribunal decisions in England and Wales. Explains what counts as a legal error, common types such as wrong legal tests and procedural unfairness, what does not count, and how identifying these errors forms the basis for appeals to the Employment Appeal Tribunal.
In the context of employment disputes, an Employment Tribunal decision may be challenged only if it contains an error of law. Errors of law are distinct from disagreements over facts or outcomes: they involve misapplication, misunderstanding or omission of the law that could materially affect the tribunal's decision. This concept is central to appeals to the Employment Appeal Tribunal (EAT), which exists to correct legal errors in first‑instance tribunal decisions. Understanding what counts - and what does not count - as an error of law is essential for anyone considering an appeal in England and Wales.
What Is an Error of Law?
An error of law arises when a tribunal fails to apply the correct legal framework, misunderstands statutory or case‑law principles, or reaches a conclusion that no reasonable tribunal could have reached on the law. Appeals to the EAT can only proceed when the appellant identifies an arguable point of law; factual disagreements on their own do not justify an appeal.
The Employment Tribunals Act 1996 provides that an appeal lies to the EAT on “any question of law arising from any decision … before an employment tribunal”. This statutory foundation reflects the limited, legal nature of appellate review in employment cases.
What Is Not an Error of Law
It is important to distinguish between errors of law and issues that do not constitute legal error. According to the EAT's practice direction:
- A tribunal making a finding of fact you disagree with is not a legal error.
- Rejecting or preferring evidence (including witness credibility) is not an error of law in itself.
- A tribunal exercising its discretion, or deciding a case differently than you expected, does not automatically mean a legal error occurred.
- Failure to determine every factual dispute does not, on its own, amount to an error of law.
- Simply reaching a different outcome from the one you hoped for is not a proper legal ground for appeal.
These distinctions emphasise that errors of law must relate to the legal reasoning or application of the law, not just the facts.
Common Types of Errors of Law
1. Applying the Wrong Legal Test
A tribunal may make an error of law if it uses the incorrect legal test or standard for a particular claim. For example:
- Misinterpreting key statutory provisions.
- Applying the wrong burden or standard of proof.
- Misunderstanding the elements of an unfair dismissal or discrimination test.
To be a valid ground for appeal, the appellant must state both what the correct test is and how the tribunal applied the wrong test.
2. Incorrect Application of the Correct Legal Test
Even if the correct test is identified, it may be applied incorrectly. Errors in application can include misreading case law, overlooking relevant statutory factors, or failing to give appropriate weight to legal principles that guide the test.
3. Decisions Unsupported by Evidence
A tribunal may commit an error of law where it reaches a conclusion of fact for which there was no evidence at all. This is not merely disagreeing with factual findings but asserting that the legal conclusion depends on evidence that does not exist.
4. Perverse Findings
A tribunal decision can be “perverse” in legal terms when no reasonable tribunal could have reached that conclusion based on the evidence and legal principles. This is a recognised ground of appeal and, although often fact‑intensive, is treated as a legal error when the legal standard for reasonableness is engaged.
5. Procedural or Natural Justice Failures
A tribunal must conduct hearings in accordance with procedural fairness. Errors such as:
- Failing to give a party a fair opportunity to present their case.
- Breaches of natural justice.
- Procedural irregularities that materially affect the outcome.
These types of errors may amount to legal error warranting appeal. While procedural matters often involve factual context, their impact on fairness and legality can qualify as an error of law.
Less Common but Recognised Legal Errors
Misinterpretation of Case Law or Precedent
Tribunals must follow binding precedent. Misinterpreting or failing to apply relevant case law may create a legal error. This often arises where tribunals overlook established principles or guidance from higher courts.
Inadequate Written Reasons
A judgment that fails to provide adequate legal reasoning may itself contain an error of law. Written reasons are critical for understanding the tribunal's application of legal principles; insufficient analysis can make an appeal arguable.
What Errors of Law Are Not
Parties often misunderstand what the EAT considers a legal error. The following are not errors of law by themselves:
- Disagreeing with how the tribunal evaluated witness credibility.
- Arguing the tribunal should have drawn different inferences from the evidence.
- Suggesting that the tribunal's decision seems unfair or harsh without demonstrating a legal misstep.
- Claiming that the tribunal should have decided differently based on factual interpretation.
These are factual or discretionary matters outside the scope of legal appeal.
Why Identifying an Error of Law Matters
Identifying an error of law is essential because only such errors justify appeal to the EAT. Without a clear legal basis, an appeal is unlikely to proceed beyond the initial sift stage, where a judge assesses whether the grounds disclose a reasonable arguable error of law. Appeals that fail at this stage are dismissed without a full hearing.
If an appeal is successful, the EAT may:
- Allow the appeal and overturn the original decision.
- Vary aspects of the decision.
- Remit the case back to the Employment Tribunal with directions on the correct legal approach.
Practical Examples
- Wrong legal test: A tribunal applies an outdated or incorrect test for unfair dismissal.
- Incorrect legal application: A tribunal misreads statutory protection for discrimination in a way that affects its reasoning.
- Unsupported decision: A panel concludes there is no protection without reference to the evidence it cites.
- Perverse outcome: No reasonable tribunal could conclude as the panel did based on the legal standard and evidence.
These exemplify different types of errors that could be grounds for appeal if they materially influenced the outcome.
Common Questions About Errors of Law
Can I appeal simply because I think the tribunal got it wrong?
No. You must show a legal error, not just a factual disagreement or dissatisfaction with the outcome.
What if the tribunal misunderstood legislation?
Misinterpretation or misapplication of statutory law is a classic example of error of law and can form the basis of an appeal.
Does a poor written judgment count as an error?
Inadequate reasons may amount to an error of law if they prevent understanding of how legal principles were applied.
Key Takeaways
Errors of law in Employment Tribunal decisions are legal mistakes in the interpretation or application of law that seriously affect the outcome of a case. They do not include factual disagreements or preference of evidence. Valid examples include applying the wrong legal test, incorrect application of law, decisions lacking evidential support, perverse outcomes and procedural unfairness. Understanding what qualifies as an error of law is vital for anyone considering an appeal to the Employment Appeal Tribunal. Clear identification and articulation of legal errors increases the likelihood that an appeal will proceed and succeed.
