EMPLOYMENT LAW

Guidance is given on the circumstances in which new points can be taken on appeal when they were not raised at the employment tribunal:

-   There is a discretion to allow a new point of law to be argued in the EAT.
-  This discretion covers new points and the re-opening of conceded points.
-  The discretion is exercised only in exceptional circumstances.
- It is even more exceptional to exercise the discretion where fresh issues of fact would have to be investigated.
-  Where the new point relates to jurisdiction, it remains a matter of discretion.
-   A new point may be permitted where, for example:

(i) it would be unjust to allow the other party to get away with some deception or unfair conduct which meant that the point was not taken below;

(ii) the point can be taken if the EAT is in possession of all the material necessary to dispose of the matter fairly without recourse to a further hearing;

(iii) the new point enables the EAT plainly to say from existing material that the employment tribunal judgment was a nullity; in such a case, it is the EAT’s duty to put right the law on the facts available to the EAT;

(iv) the EAT can see a glaring injustice in refusing to allow an unrepresented party to rely on evidence which could have been adduced at the employment tribunal;

(v) the EAT can see an obvious knock-out point;

(vi) the issue is a discrete one of pure law requiring no further factual enquiry;

(vii) it is of particular public importance for a legal point to be decided, provided no further factual investigation and no further evaluation by the specialist tribunal is required.

- A new point may be disallowed where, for example:

(a) what is relied upon is a chance of establishing lack of jurisdiction by calling fresh evidence;

(b) the issue arises as a result of lack of skill by a represented party (that is not a sufficient reason);

(c) the point was not taken below as a result of a tactical
decision by a representative or a party;

(d) all the material is before the EAT but what is required is an evaluation and an assessment of this material and application of the law to it by the specialist first instance tribunal;

(e) a represented party has fought and lost a jurisdictional issue and now seeks a new hearing; that applies whether the jurisdictional issue is the same as that originally canvassed or is a different way of establishing jurisdiction from that originally canvassed;

(f) what is relied upon is the high value of the case (per Judge McMullen at para 50).