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The Employment Appeal Tribunal had been right and bound by authority to decline to consider a point of law not advanced before the employment tribunal in the absence of exceptional circumstances and where success on the point on appeal would have required the case to be remitted for further consideration by the tribunal.
HELD: (1) The EAT should only allow a new point of law to be taken before it in exceptional circumstances, Jones v Governing Body of Burdett Coutts School (1999) ICR 38 applied. Such a point was not to be taken merely because it seemed to be, or was even shown to be, a good one. Nothing had been shown to demonstrate that the instant case was exceptional. The local authority's claim that there was an overriding public interest in deciding the "in good time" point was greatly undermined by U's submission, which was correct, that a decision in the local authority's favour on the construction issue would require the case to be remitted for further consideration by the tribunal, since whether consultation took place in good time was a matter of fact and degree. In the circumstances the EAT was right and bound by authority to decline to allow the fresh construction point to be taken. (2) The tribunal had held in terms that the previous discussions on which the local authority relied were on different issues from those that fell to be canvassed in a s.188 consultation. Any consultation prior to the making of the proposal to dismiss could not be taken into account. The EAT was right that the tribunal had not erred in law in making the maximum award. The appeal on that issue was an appeal to the merits dressed up as law. (3) The EAT had been wrong to find that the tribunal had erred in relation to the enhancement group. On any reasonable approach to the facts it could not be said that the tribunal had misunderstood the evidence or arrived at a perverse conclusion. It had not failed to recognise as mitigation anything that should reasonably have been treated as mitigating the local authority's breach. So far as the EAT concluded otherwise, it was in error. The protective award of 20 days was restored.
Appeal dismissed, cross-appeal allowed.
Counsel for the respondent: John Cavanagh QC, Helen Gower
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