Background
Bilal Miah worked for the London Ambulance Service NHS Trust as Emergency Ambulance Crew. He arranged to work shifts on 25, 26 and 27 December 2021 and initially asked for them to be recorded as overtime, but later requested that they be changed to core shifts. The Trust made that change before processing the timesheets and then withheld £1,050 in disruption payments because the shifts were recorded as core hours.
Before the Employment Tribunal, Miah argued that the Trust’s November 2021 bulletin entitled employees to disruption payments for core shifts worked on the specified holidays. He did not argue that the shifts should have remained recorded as overtime, should not have been converted to core shifts, or should later have been converted back to overtime. The Tribunal held that disruption payments were payable only for overtime hours and dismissed his unlawful-deduction claim.
After an initial assessment found no reasonable grounds for appeal, the EAT allowed two amended grounds to proceed following a Rule 3(10) hearing. Those grounds alleged that the Tribunal had failed to consider whether the Trust followed its policies when changing the shifts from overtime to core hours and handling erroneous timesheets, or had failed to give adequate reasons on that issue.
The Court’s Holding
The EAT dismissed the appeal because the permitted grounds depended entirely on the “conversion argument,” which had not been advanced before the Employment Tribunal. The issue agreed and tried below concerned only whether core shifts attracted disruption payments. It ordinarily could not be an error of law for the Tribunal to omit a decision on a materially different contention that Miah had not asked it to decide.
The EAT found no exceptional circumstances justifying consideration of the new argument. Miah had raised both theories in correspondence before the original hearing but, while represented, pursued only the construction of the bulletin. There was no evidence that this choice resulted from his mental health condition. Allowing the conversion argument would also introduce documents not presented below, potentially require further evidence and disclosure, and risk another Tribunal hearing.
The EAT also declined to revisit the construction argument because it fell outside the grounds permitted to proceed; the other grounds had already been dismissed by consent. It further refused Miah’s application for a preparation time order, finding no valid basis for an award based on privileged settlement negotiations or his unsuccessful appeal arguments.
Key Takeaways
- The EAT will permit an argument not advanced before the Employment Tribunal only in exceptional circumstances, particularly where it would require new evidence or factual findings.
- An Employment Tribunal generally commits no error of law by failing to decide a point that the parties did not ask it to determine.
- Appellants remain responsible for ensuring that their appeal grounds reflect arguments made below and for complying with the EAT Practice Direction when seeking permission to raise a new point.
Why It Matters
The decision reinforces finality in employment litigation: a Tribunal hearing is intended to resolve the dispute, not serve as a first stage after which an unsuccessful party may present a different case on appeal. A theory mentioned in pre-hearing correspondence is not preserved merely because it could have been argued; it must actually be put before the Tribunal.
The judgment also warns representatives and self-represented litigants to verify the procedural history before advancing appeal grounds. Whether grounds are drafted by counsel, a pro bono representative, or generative AI, the appellant bears responsibility for identifying new arguments and seeking permission under the applicable Practice Direction.