Marks & Spencer Plc

Case Summary

This EAT judgment addresses a procedural point concerning Rule 3(10) hearings. The court clarified that respondents should not ordinarily make submissions at Rule 3(10) hearings, which are designed for brief assessment of whether grounds refused at sift stage have reasonable prospects. In this case, the respondent's skeleton argument helpfully identified that ground 9 lacked evidence support, leading to its withdrawal by the appellant.

This is a procedural judgment addressing EAT practice rather than substantive appeal determination. The court provided guidance that respondents should not seek to make submissions at Rule 3(10) hearings save in exceptional circumstances, as these hearings are designed for brief assessment by the appellant only. The respondent's skeleton argument was accepted as rare but beneficial in this instance as it identified a fundamental defect in one ground, leading to its withdrawal.

• •Rule 3(10) hearing procedure
• •Circumstances in which respondent may make submissions at Rule 3(10) hearing
• •Whether respondent skeleton argument and attendance appropriate at Rule 3(10) stage

Judgment approved by the Court Harkins v Marks & Spencer Plc © EAT 2026 Page 1 [2026] EAT 70 Neutral Citation Number: [2026] EAT 70 Case No: EA-2023-000761-JOJ EMPLOYMENT APPEAL TRIBUNAL Rolls Building Fetter Lane, London, EC4A 1NL Date: 7 May 2026 Before : HIS HONOUR JUDGE JAMES TAYLER - - - - - - - - - - - - - - - - - - - - - Between : MRS M G HARKINS Appellant - and - MARKS & SPENCER PLC Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Rad Kohanzad (instructed by Lawson West Solicitors Limited) for the Appellant Grace Holden for the Respondent Rule 3(10) Hearing Hearing date: 7 May 2026 - - - - - - - - - - - - - - - - - - - - - JUDGMENT Judgment approved by the Court Harkins v Marks & Spencer Plc © EAT 2026 Page 2 [2026] EAT 70 SUMMARY Practice and Procedure The very limited circumstances in which a respondent might make submissions at a Rule 3(10) Hearing considered. Judgment approved by the Court Harkins v Marks & Spencer Plc © EAT 2026 Page 3 [2026] EAT 70 HIS HONOUR JUDGE JAMES TAYLER: 1. This judgment deals with a brief point of procedure that arose at a Rule 3(10) hearing. 2. After an appeal is submitted to the EAT it is “sifted” on the papers: see Section 4 EAT Practice Direction. A Judge of the EAT considers whether there are reasonable grounds for bringing the appeal. That process is provided for by Rule 3(7) of the Employment Appeal Tribunal Rules 1993 (as amended) (“EAT Rules”). 3. If the judge considers that all, or any, of the grounds should proceed to a full or preliminary hearing, that will be provided for in an Order. If the Order directs a full hearing, the respondent will be given a time within which to reply - 28 days unless otherwise directed: Section 9.1.2 EAT Practice Direction. 4. If the Judge is of the opinion that all, or any, of the grounds should not proceed, gener…