Clare Jackson v The University Hospitals of North Midlands NHS Trust
[2023] EAT 102
M Rajput & Anor v Sky Retail Stores Limited
19 March 2024
[2024] EAT 46
Employment Appeal Tribunal
Workers lost a bonus after their jobs changed. They sued, but a judge said they were fired (even though they kept working). They appealed, raising a new argument they didn't use before. The appeals court said they couldn't use the new argument because they had lawyers beforehand, and it would need more investigation. So the workers lost.
Key Facts
- •Two store managers (claimants) lost their 'Store Manager Allowance' (SMA) due to a company restructure.
- •Their basic pay increased, exceeding the previous total of basic pay plus SMA.
- •Claimants continued working under protest, claiming unlawful wage deduction (SMA) and lack of collective consultation.
- •Tribunal found the restructure constituted a dismissal under *Hogg v Dover College*, dismissing the wage claim.
- •Claimants appealed, arguing the tribunal misapplied *Hogg v Dover College* in light of *Geys v Société Générale* regarding the elective theory of termination.
- •The appeal sought to introduce a new legal argument not raised in the tribunal.
Legal Principles
Hogg v Dover College principle of dismissal: Imposition of fundamentally different terms constitutes dismissal, even if the employee continues working under the new terms.
Hogg v Dover College [1990] ICR 39
Elective theory of termination (Geys): A contract is terminated only if the employee accepts the employer's repudiatory breach. This may not apply to unfair dismissal cases.
Geys v Société Générale, London Branch [2012] UKSC 63; [2013] ICR 117
Permission to raise new points on appeal: The EAT has discretion to allow new points of law, but only in exceptional circumstances, particularly if it would necessitate further fact-finding. The respondent is entitled to review if a new point was allowed without their input.
Secretary of State for Health v Rance [2007] IRLR 665
Outcomes
Appeal dismissed.
The claimants' new argument based on *Geys* was not raised in the tribunal and constituted a substantive new point requiring permission. The EAT, reviewing the Rule 3(10) judge's decision, found no exceptional circumstances to grant permission, given the claimants' previous legal representation and the need for further fact-finding if the point were allowed.