M Rajput & Anor v Sky Retail Stores Limited

A party who seeks on appeal to advance a materially different legal analysis from that advanced before the employment tribunal requires permission to raise a substantive new point. The fact that the new analysis proceeds from facts relied on below does not remove that requirement.

The discretion to permit a new point is exceptional. It is less likely to be exercised where success would require remission for further factual or evaluative findings, the party was professionally represented below, and finality in litigation would be undermined. A potentially important and arguable legal issue does not of itself outweigh those considerations.

The claimants were Store Managers who received a Store Manager Allowance in addition to basic pay and commission. Following a reorganisation, the respondent abolished that role, stopped the allowance and employed them as Sales Advisers on increased basic pay. They continued working and said that they did so under protest.

The Employment Tribunal dismissed their wages claims after finding that the changes amounted to dismissals under Hogg v Dover College, [1990] ICR 39. The parties had agreed below that this conclusion ended the wages claims, though it was necessary for the collective-consultation claims. Those claims also failed for want of standing.

On appeal, the claimants sought to argue for the first time that Geys v Société Générale, London Branch, [2012] UKSC 63, affected the application of Hogg to a contract-based wages claim. The central issue was whether permission should be granted to advance that new point.

1. Appeal dismissed. The proposed reliance on Geys v Société Générale, London Branch, [2012] UKSC 63, was a substantive new argument. Before the tribunal, the claimants had advanced mutually exclusive cases: either the changes did not cross the Hogg line and their existing contracts continued, or they did cross it, ending both the contracts and the wages claims. They had not contended that a statutory Hogg dismissal could coexist with a continuing contractual claim for wages.

2. Hogg v Dover College, [1990] ICR 39, treats sufficiently radical imposed changes as withdrawal of the former employment contract and the offer or imposition of a new one. On that analysis, continued work is performance under the new contract, not acceptance of a variation of the former contract. Alcan Extrusions v Yates, [1996] IRLR 327, confirmed the distinction between a mere repudiatory variation and changes radical enough to remove the old contract.

3. A rule 3(10) decision granting permission to raise a new point was reviewable at the respondent’s request. The respondent had not been heard at that stage. Fairness required the EAT to determine afresh whether the new point should be permitted, rather than confining the review to the ordinary approach under rule 33.

4. Applying the guidance collected in Secretary of State for Health v Rance, [2007] IRLR 665, the point was novel, arguable and potentially important. However, success would necessarily have required remission. The tribunal had made no findings on whether the claimants had legally effectively accepted the altered pay regime or worked under protest. The claimants had also been represented by specialist counsel when the claims were framed and argued below.

5. Those considerations, together with the public interest in finality, outweighed the benefit of deciding the proposed point in this appeal. Permission to raise ground 1 was refused.

• Employment Appeal Tribunal: Appeal dismissed. Permission to advance a new contractual argument based on Geys was refused: [2024] EAT 46.
• Employment Tribunal: In a reserved decision sent on 24 November 2021, dismissed the unlawful-deduction, collective-consultation and trade-union detriment complaints. It found that the imposed changes amounted to Hogg-type dismissals and therefore ended the contractual entitlement relied on for the wages claims.