Glennie v Independent Magazines (UK) Ltd

An appellate tribunal may permit a point of law to be raised for the first time on appeal only in exceptional circumstances and in accordance with established principles. A jurisdictional point may qualify where it is a discrete question of pure law which requires no further factual inquiry.

A represented party who contested and lost a jurisdictional issue on agreed facts cannot ordinarily resile from that basis and obtain a fresh hearing involving disputed evidence and mixed questions of fact and law. The appellate tribunal must identify reasons capable of justifying any departure from the general duty to advance the whole case at the proper time.

An employee's unfair dismissal application was dismissed by an Industrial Tribunal as out of time. It had been common ground that her employment ended on 27 February 1997. On appeal, she contended for the first time that this was merely the date on which notice was given and that the effective termination date was one month later.

The Employment Appeal Tribunal allowed the new point and remitted the matter for determination of the termination date and jurisdiction. The employer appealed. The central issues were whether the new jurisdictional argument could properly be raised after the case had been determined on agreed facts and whether the Employment Appeal Tribunal had adequately explained its exercise of discretion.

1. Appeal allowed unanimously. Brooke LJ delivered the leading judgment, with which May LJ agreed. The Employment Appeal Tribunal was wrong to permit the employee to raise the new point and to remit the jurisdictional issue. Laws LJ agreed in a separate concurring judgment.

2. The Employment Appeal Tribunal has power to allow a new point of law to be raised on appeal, but the power must be exercised according to established principles. A party has a general duty to advance the whole case at the proper time. A new point should therefore be admitted only in exceptional circumstances.

3. The broader jurisdictional statement in House v Emerson Electric Industrial Controls [1980] ICR 795 required qualification. A jurisdictional label does not confer an unfettered discretion to reopen a case. Russell v Elmdon Freight Terminal Ltd [1989] ICR 629 and Barber v Thames Television Plc [1991] ICR 253 showed that justice does not ordinarily permit a represented party to pursue a second factual basis which was available but omitted below.

4. The employee had been represented when the Industrial Tribunal determined jurisdiction on the agreed termination date. Her proposed argument would require a new inquiry into disputed facts and their legal effect. It was not an obvious point of pure law capable of final determination on the existing material. The principles stated in Kumchyk v Derby City Council [1978] ICR 116 therefore remained applicable.

5. The Employment Appeal Tribunal also failed to give reasons. A bare statement that its members considered remittal to be in the interests of justice did not identify any recognised principle or exceptional circumstance supporting that conclusion.

6. Laws LJ added that a jurisdictional issue may amount to an exceptional circumstance where it is a discrete, pure or hard-edged question of law requiring no further factual inquiry. This case did not fall within that category. On the facts admitted before the Industrial Tribunal, it had correctly declined jurisdiction.

The employer's appeal was allowed with costs, with legal aid taxation of the employee's costs.

1. Court of Appeal (Civil Division): Allowed the employer's appeal unanimously and set aside the Employment Appeal Tribunal's remittal.

2. Employment Appeal Tribunal: Allowed the employee to raise a new argument about the effective date of termination and remitted that issue to the Industrial Tribunal for determination.

3. Industrial Tribunal: Determined on the parties' agreed termination date that the unfair dismissal application was out of time and that it lacked jurisdiction.