Templeton Thorp Ltd v Gilbert

An appeal to the Employment Appeal Tribunal is confined to points of law. Save in exceptional circumstances, a party may not advance a fresh basis for its claim on appeal.

The parties, including litigants in person, must formulate their own claims. An Employment Tribunal is not required to identify and plead an unadvanced head of loss for a party. A proposed new measure of contractual damages which was not put below, and which would require fresh evidence and argument, should not be admitted on appeal merely because it raises an arguable legal issue.

The employee brought money claims arising from his employment. The employer's contractual counterclaim alleged that he had created fictitious subscriber accounts and had undertaken work for another publisher during employment. The Employment Judge dismissed the counterclaim, finding that no compensable loss had been established.

At a Rule 3(10) hearing the employer obtained permission to pursue grounds concerning a possible account of profits or disgorgement remedy. At the full hearing, the employee objected that this was a new basis of damages which had not been advanced before the Employment Tribunal. The central issue was whether the employer could advance that new case on appeal.

1. Appeal dismissed. The employer was not permitted to advance a new measure of damages based on the employee's alleged profits from assumed breaches of contract.

2. The Tribunal accepted the general proposition that contractual damages may, in an appropriate case, require a party in breach to disgorge profits, as submitted by reference to Attorney General v Blake [2001] 1 AC 268. That proposition did not assist the employer because it had not put its counterclaim below on that basis.

3. The Employment Judge therefore could not be criticised for failing to decide an unadvanced head of loss. It was for the parties, whether represented or not, to formulate their claims. The employer had already had the opportunity to do so in its amended counterclaim.

4. No exceptional circumstance justified the fresh point. The proposed reformulation would require a rehearing and further evidence and argument on whether the employee had made any profit. The time spent on the relevant activities was also found to be de minimis. In view of the age of the proceedings, the Tribunal declined to permit a further and different way of advancing the appeal.

• Employment Appeal Tribunal: dismissed the employer's appeal and upheld the employee's objection to the new basis of damages.
• Employment Tribunal (London Central): Employment Judge Wade, by judgment with reasons dated 19 August 2013, dismissed the employer's contractual counterclaim after finding no compensable loss.