The EAT has a power exceptionally, to receive an argument which had not been put to tribunal. Knox J said: ‘We do not accept the proposition that any and every contention by a party to an appeal that that party by calling further evidence can show that the applicant’s case falls outside the jurisdiction of the industrial tribunal has to be acceded to on appeal. A question of jurisdiction is not necessarily and in all circumstances a trump card which if played upon an appeal automatically determines the appeal in favour of the party playing that card’.
Knox J referred to the case of House and said: ‘It does not however follow from this that all jurisdictional points must be allowed at any stage even if they involve a further hearing to establish further facts. In our view in each case the appeal tribunal has to decide on balance whether justice requires that the new point should be allowed to be taken. If it appears on existing evidence that the decision appealed from is a nullity that will be a consideration of overwhelming strength. Where what is relied upon is a chance of establishing a lack of jurisdiction by calling fresh evidence which was always available the case is far less straightforward’. And ‘We are unpersuaded that it would be just for the employers to have a second bite at the cherry of trying to persuade the industrial tribunal that the employee is disqualified by Section 64(1)(b) of the Act by advancing evidence which was always available but was not used for what no doubt at the time seemed, to be excellent reasons’
Judges:
Knox J
Citations:
[1991] ICR 253
Statutes:
Employment Protection (Consolidation) Act 1988 64(1)(b)
Citing:
Cited – House v Emmerson Electric Industrial Controls EAT 1980
An unsuccessful Applicant sought leave to argue a jurisdictional point which he had not raised at the hearing before the Industrial Tribunal.
Held: Talbot J allowed the point to be raised saying: ‘For instance, if an Industrial Tribunal had . .
Cited by:
Cited – M Dowling v M E Ilic Haulage, Berkeley Logistics Ltd EAT 19-Feb-2004
EAT Procedural Issues – Employment Tribunal
EAT Trade Union Rights – Action short of dismissal
It had been found that the claimant had been dismissed for an . .
Appeal from – Barber v Thames Television plc CA 1992
The applicant was ‘precluded by Section 64(1)(b) from making his complaint to the industrial tribunal’ The appeal succeeded. . .
Cited – Leicester University Students Union v Mahomed EAT 6-Dec-1994
The Union appealed a finding of unfair dismissal and discrimination. It denied that she had sufficient continuous service, saying that the peirod suggested involved working for two employers. It also said that since the objection went as to . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 13 May 2022; Ref: scu.195718
