Raising new substantive arguments at appeal stage

The Employment Appeal Tribunal (EAT) has ruled in a case involving a local authority that it would not be in the interests of justice to allow a claimant to raise a new argument on appeal, despite acknowledging an error in the Tribunal’s decision. Gareth Edwards explains why.

The case of CJ v PC concerns a claimant (CJ), an HR adviser for a local authority, who successfully brought claims of discrimination arising from disability and victimisation under the Equality Act 2010. CJ’s employment ended with ill-health retirement in November 2020 due to disabilities including epilepsy, a benign brain tumour, and functional neurological disorder.

During the tribunal proceedings, the claimant’s legal team presented a schedule of loss that deducted ill-health retirement pension payments from her claimed loss of earnings. This approach was adopted by the tribunal and accepted by the respondent, neither of whom was aware of the principle established in Parry v Cleaver, which holds that such pension payments should generally not be offset against compensation for lost earnings. The tribunal awarded CJ £13,500 for past losses but made no award for future loss, concluding that her pension and likely future earnings exceeded her former expected salary.

Appeal and decision

The claimant appealed on the basis that the tribunal had erred in law by deducting her ill-health retirement pension from her compensation for loss of earnings, contrary to the principle established in Parry v Cleaver. The EAT agreed that the tribunal’s approach was legally flawed. However, it found that the error arose from the way the claimant’s case had been presented. Her legal representatives had prepared a schedule of loss that included the pension deductions, and the respondent, unaware of the legal principle, had accepted this approach in good faith.

The EAT concluded that it would not be in the interests of justice to allow the claimant to raise this new point on appeal. Allowing the argument would require a rehearing of the remedy stage, incurring significant costs for the respondent and potentially leading to a windfall for the claimant. The EAT underscored that appeals are not an opportunity to introduce arguments that could have been raised during the original hearing but were not, particularly when the omission stemmed from the claimant’s legal strategy.

Key learning points

This case highlights the importance of addressing all substantive issues at the earliest stage in tribunal proceedings. The EAT’s decision underscores that appeals are not an opportunity to revisit arguments that could have been raised initially but were not. Employers should be aware that tribunals and appeal courts place significant value on procedural fairness and the finality of litigation, meaning that issues overlooked during the original hearing are unlikely to succeed on appeal.

Gareth Edwards is a Partner in the Employment Team at VWV.