EAT case dismissed on the basis that the appeal court could not examine new arguments which were not made to the first instance Tribunal.

The claimant was employed as a health care assistant by the respondent from 2009 until her dismissal on 8th June 2022. The dismissal arose from the absence management procedure, during which it was determined that the claimant was not medically fit to continue in her role. The claimant internally appealed this with that appeal being dismissed on 19th November 2022.  The claimant then presented her claim on 10th and 12th January 2023.

The respondent argued that they were out of time which was the basis for the hearing and this appeal.

At first instance, the Tribunal held that the claim had been presented four months out of time and that it would have been reasonably practicable for the claimant to have submitted them within the time. On a disability discrimination claim it was also held that it was four months out of time and there was no basis upon which it would be just and equitable to extend time.

The claimant appealed to the EAT arguing that there was a failure to consider the fact that she had brought an internal appeal and that there had been a failing in considering whether there was a continuation of disability discrimination through the internal appeals process.  The EAT dismissed this outlining that the Tribunal could not have erred on these arguments as they were not raised to the Tribunal at first instance.

This demonstrates a very important feature relating to appeals generally. The appeals process is not an option for appellants to re-open cases and making new arguments which were not originally made. The claimant, at the first instance, had the opportunity to raise the arguments seeking to have an extension of time but did not so. There is no merit in allowing these new arguments which would be extremely problematic for the appellate court as well as for respondents to those appeals.

You can read the case in full here.