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.
An authoritative guide to how tribunal judges use legal precedent in decisions in England and Wales, explaining the role of binding authority, persuasive judgments, case law application, and the impact on employment tribunal outcomes.
In the UK legal system, precedent plays a central role in ensuring consistency and fairness in judicial decisions. Employment tribunals are specialised judicial bodies that decide disputes between employees and employers. While they do not sit at the top of the judicial hierarchy, tribunal judges must apply legal principles established by higher courts and, where relevant, appeal tribunals. This article explains how precedent works in the context of tribunals, how judges use it in practice, and what this means for claimants and respondents.
What Is Legal Precedent?
Legal precedent refers to the principle that courts and tribunals should follow previous judicial decisions when deciding new cases with similar facts or issues. This concept is foundational in common law systems such as that in England and Wales, and ensures consistency, predictability and fairness in the application of the law. Under the doctrine of stare decisis, lower courts and tribunals take account of decisions made by higher courts and binding bodies, while recognising that not all past decisions are equally authoritative.
The Structure of the Judicial System and Precedent
Employment Tribunals and Appeal Routes
Employment tribunals in England and Wales hear claims relating to unfair dismissal, discrimination, wages and other workplace disputes. An employment tribunal's decision may be challenged on a point of law by either party to the Employment Appeal Tribunal (EAT). Further appeals can proceed to the Court of Appeal and ultimately the Supreme Court.
Decisions from these higher bodies form part of the hierarchical structure of precedent:
- Supreme Court: decisions are binding on all courts and tribunals in the UK.
- Court of Appeal: binding on lower courts and tribunals, including employment tribunals, subject to limited exceptions.
- Employment Appeal Tribunal: decisions are binding on employment tribunals and persuasive in tribunals across the UK.
Employment tribunal decisions themselves are not binding precedent in the way that decisions of superior courts are, but they may be persuasive, particularly where they are published and address legal issues in detail.
How Tribunal Judges Use Precedent
Applying Binding Decisions
When determining legal issues, tribunal judges are required to follow decisions of higher authorities:
- If the Supreme Court has ruled on the interpretation of a statutory provision relevant to a case, a tribunal judge must apply that interpretation.
- Similarly, established principles from the Court of Appeal and the EAT guide tribunal judges on legal points such as the requirements for fair dismissal or discrimination tests.
For example, in British Home Stores Ltd v Burchell (a Court of Appeal and Employment Appeal Tribunal decision concerning unfair dismissal) tribunals use the Burchell test to assess whether an employer has acted reasonably in dismissing an employee for misconduct:
- whether the employer genuinely believed the employee was guilty of misconduct;
- whether that belief had reasonable grounds; and
- whether there was a reasonable investigation before dismissal.
Tribunals regularly apply this test when considering unfair dismissal claims involving misconduct.
Persuasive Use of Tribunal Decisions
While an individual employment tribunal decision does not bind future tribunals, judges often refer to published tribunal judgments to understand how similar fact patterns were resolved. These decisions help illustrate the practical application of legal principles and assist parties in formulating arguments.
Published tribunal decisions may summarise relevant case law, outline statutory interpretations, and explain how tribunal panels applied legal tests to specific evidence. Reading such decisions can offer insight into how tribunals reason and help parties anticipate issues.
Reconciling Conflicting Authority
Tribunal judges may encounter conflicting legal authority or principles. In such cases, they must follow the highest relevant binding authority. For example, if two Employment Appeal Tribunal decisions differ, a tribunal should follow the one most consistent with Supreme Court and Court of Appeal authority.
Where no binding authority directly addresses the issue, judges may consider persuasive sources, including:
- reported decisions from other tribunals;
- commentary in legal texts and authoritative practice guidance;
- relevant statutory interpretation from higher courts.
Written Reasons and Legal Justification
Tribunal judges are required to provide written reasons for their decisions, especially where a judgment disposes of the case. These reasons explain how legal principles, including precedent, have been applied to the facts. Providing clear reasons supports transparency and facilitates meaningful appellate review if either party disagrees with the legal conclusions.
Written judgments typically:
- set out the relevant statutory framework;
- identify applicable legal tests from authoritative case law;
- explain how evidence and facts align with legal principles; and
- reference binding or persuasive precedent where relevant.
Practical Impact on Tribunal Outcomes
Consistency and Fairness
The use of precedent ensures that similar issues are treated consistently across cases. Legal tests developed by higher courts help tribunals apply the law uniformly, reducing arbitrary outcomes and guiding both claimants and respondents about likely legal standards.
For example, in unfair dismissal claims, tribunals use established tests - such as the Burchell test - to assess whether an employer's actions fall within a reasonable range of responses. This helps tribunals differentiate between procedural errors and substantive unfairness.
Appellate Review
If a tribunal judge misapplies legal precedent or fails to consider relevant authority, either party may appeal on a point of law to the Employment Appeal Tribunal. Successful appeals can lead to new binding guidance on that legal point.
Common Questions About Precedent in Tribunal Decisions
Can tribunal decisions themselves create binding precedent?
No. Employment tribunal decisions are not binding on other tribunals. Their primary value is as persuasive indicators of how legal principles might be applied.
Which decisions do tribunal judges have to follow?
Tribunal judges must follow decisions of the EAT, Court of Appeal and Supreme Court on relevant legal points. Decisions of equivalent tribunals or lower courts may be persuasive but not binding.
How can parties use precedent in their case?
Parties can refer to binding authority from higher courts and persuasive decisions in written submissions to highlight how legal principles apply to their facts. Clear exposition of legal precedent strengthens arguments and helps tribunal judges align reasoning with established law.
Final Thoughts
Precedent shapes how employment tribunal judges analyse legal issues, interpret statutes and apply tests to the facts of a case. While individual tribunal decisions are not binding, legal principles from the Employment Appeal Tribunal, Court of Appeal and Supreme Court must be followed. Tribunal judges justify their decisions with reference to binding authority and, where appropriate, persuasive tribunal or academic commentary. Understanding how precedent operates enhances the predictability of outcomes and supports both claimants and respondents in preparing effective cases.
