Kumchyk v Derby County Council: EAT 1978

The appellant sought to advance an argument that a certain term was implied into the contract of employment which, for its consideration, would have required consideration of a factual framework which had not been explored in evidence.
Held: The failure of a party’s legal representative properly to explain his client’s case to the tribunal is not an error of law so as to justify the EAT’s interference. Nor would any lack of skill or experience on the part of the appellant or his advocate. A new point of law cannot be raised before the EAT that had not been raised below, save in very exceptional circumstances, and where it can be satisfied that it has all the material facts and no prejudice would be done to the opposing case.
It was not for the Tribunal to suggest to a party a point for consideration, by it, or its advocate, which had been overlooked, or omitted, or to explore a point expressly disclaimed.
Arnold J said of the failure to take the point at the hearing: ‘It certainly is not enough, in our judgment, that the point was not taken owing to a wrong, or what turns out in the light of after events to have been a wrong, tactical decision by the appellant or his advocate. It would certainly not be enough that the omission was due to the lack of skill or experience on the part of the advocate. It would certainly not, we think, be enough that the omission could have been made good had the industrial tribunal chosen to suggest the point for consideration to the appellant or his advocate. It is well established in these tribunals, and we hope in this appeal tribunal, that where the representation is a non-professional representation, or possibly even where it is an inexperienced professional representation (if such a thing can be conceived), in listening to an argument put forward by an advocate or evaluating a point of law put forward by an advocate, the tribunal will be as helpful as possible, perhaps by itself refining and improving the argument, perhaps by suggesting to the advocate that the argument might be put in a different or more favourable fashion, something of that sort. But we think that it is very far from the duty or indeed the practice of the chairman of industrial tribunals that they should be expected to introduce into the case issues which do not figure in the presentation on the one side or the other, at any rate in normal circumstances’.

Arnold J
[1978] ICR 1116
England and Wales
Cited by:
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EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
CitedBryant v Housing Corporation CA 21-May-1998
A complainant before an industrial tribunal will only be allowed to amend her statement in order to add an allegation of victimisation for sex discrimination where this arises naturally from the facts alleged. In this case the new claim was rather . .
Exception toHouse v Emerson Electric Industrial Control 1980
The EAT may exceptionally hear a point not raised at the tribunal where no new facts were required to be pleaded. . .
CitedM 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 . .
CitedSharp v Caledonia Group Services Ltd EAT 1-Nov-2005
EAT Equal Pay Act – Material factor defence – In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.
The . .
CitedFadipe v Reed Nursing Personell CA 4-Dec-2001
Failure to give proper reference. ECJ judgment giving right to make complaint only if cause was result of complaint over health and safety matters.
Held: The appeal failed. The section did not protect former workers: ‘section 44 does not, on . .
CitedRamsay and others v Bowercross Construction Ltd and Another EAT 14-Aug-2008
Costs – whether a party can recover by way of costs counsel’s fees (yes) and those of a non legally qualified adviser, as defined in s.71 CandLSA 1990 (no). Employment . .
CitedDimtsu v Westminster City Council EAT 1991
The EAT considered the application of the rule in Henderson v Henderson in Employment Appeal Tribunal proceedings.
Knox J said: ‘The majority is fortified in the view expressed so far by three further considerations. First, this jurisdiction . .
CitedDivine-Bortey v London Borough of Brent CA 14-May-1998
The claimant had brought and lost an action relating to his dismissal by the defendant, who now appealed against an order that he was not estopped from bring a second claim on a different basis namely race discrimination, disapplying the rule in . .
CitedSlack and Others v Cumbria County Council and Another CA 3-Apr-2009
The court was asked when the six month’s limit for beginning equal pay proceedings began. The new section 2ZA set the qualifying date as ‘the date falling six months after the last day on which the woman was employed in the employment.’ The problem . .
CitedSodexho Ltd v Gibbons EAT 14-Jul-2005
EAT Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. . .
CitedAsda Stores Ltd v Thompson, Pullan, and Caller EAT 16-Jun-2003
The appellants had been dismissed after investigations satisfied the employer that the employees had been using illegal drugs. Cross appeals were made in the following misconduct unfair dismissal claim. The employees complained of the use of . .
EndorsedGlennie v Independent Magazines (UK) Limited CA 17-Jun-1999
A party is under a duty to present his entire case at the first hearing in the Employment Tribunal. Where a claimant’s representative had decided to adopt a particular position in law when making representations to the original industrial tribunal, . .
CitedCable Realisations Ltd v GMB Northern EAT 29-Oct-2009
The company appealed against the upholding of the union’s claim that the company was in breach of the regulations. The company was to close its factory and decided at first to begin consultations for redundancy, but then looked for a buyer for the . .
CitedSecuricor Omega Express Ltd v GMB (A Trade Union) EAT 7-Apr-2003
EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult . .
CitedOakland v Wellswood (Yorkshire) Ltd CA 30-Jul-2009
The employer was in financial difficulties. A new company was formed by a customer to acquire its assets, and the employees, including the claimant were taken on by the new company. The claimant was dismissed within a year after. On claiming unfair . .
CitedDA v Strathclyde Joint Police Board SCS 27-Jun-2012
The tribunal’s decision that the appellant had been unfairly dismissed by the respondent had been reversed at the EAT. The respondent had been allowed to withdraw a concession, and the appellant now sought to pursue a different argument. The . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 10 November 2021; Ref: scu.183853