Whether or not you are interested in employment law or ever read Employment Appeal Tribunal (EAT) cases, you might like to take a look at its decision in USDAW v Woolworths.*

The case in the lower tribunal had raised a tricky interpretation of the Transfer of Undertakings (TUPE) Regs. The case raised the meaning of the word ‘establishment’, the significance of which was of general public importance. The EAT therefore expressly invited the Secretary of State for BIS to participate in the case.

They declined, but when they heard the decision of the EAT they decided that they did not like it and sought permission to appeal to the Court of Appeal, even though the original respondents, Woolworth did not wish to pursue the appeal further. This, in the words of HHJ McMullen, is ‘wholly unique’.

He granted permission, but (in para 21) required the Secretary of State to indemnify the Claimants against an award in his favour and to pay the reasonable costs of the Claimants in responding to the appeal in the Court of Appeal. This seems fair, but it left me with two thoughts. No doubt the Secretary of State had his reasons for declining the EAT’s express invitation to participate in an appeal on a matter of public importance, but from outside it looks like breathtaking arrogance. What is more, as taxpayers, we are now faced with meeting the cost of both parties’ involvements in an appeal to the Court of Appeal (plus the cost of providing that court itself) which may well have been quite unnecessary.

*If clicking here – it will take you to the list of recent judgments. You are looking for hearing date of 10/9/13 and EAT number UKEAT/0547/12/GE & UKEAT/0548/12/GE.

Nigel Duncan is Professor of Legal Education at The City Law School and Course Director of the LLM in Professional Legal Skills. The majority of his teaching is on the BPTC and LLM in Criminal Litigation.