KB-2023-003510 - [2025] EWHC 1755 (KB)

Then at paragraph 40, those grounds of appeal state:

“At paragraphs 46 and 113 of the judgment, the ET determined for the purposes of sections 11 and 12 of the ERA that the claimant was entitled to a bonus based on 50 per cent of his salary, rejecting his case that this was varied to 100 per cent in 2016 by agreement.”

The Defendants submit, based on those materials, that this issue of the variation of bonus was plainly an issue that was in front of the Tribunal, and that the Tribunal rightly addressed it and that they have made a finding which is conclusive and ought not to be sought to be revisited in these High Court proceedings. Mr Dowding, on the other hand, contends that, in reality, his claim was limited to a claim under section 1 of the Employment Rights Act relating to the terms of employment that he ought to have been given at the start of his employment and not a claim under section 4 as to what notice of variation of terms his employer ought to have provided to him, and that he limited his claim in front of the tribunal to a claim based on section 1.

It seems to me absolutely clear that this was an issue that was raised in front of the Tribunal. It was raised in the Particulars of Claim. It was ventilated in Mr Dowding's witness statement. I am told and I accept that there was evidence given by the now Defendants in the High Court to the contrary, and that the Tribunal resolved the issue, having regard to all the evidence, including the contemporary documents.

If, contrary to that finding, it was an issue that was not raised by Mr Dowding, it seems to me absolutely clear that it is an issue that could and should have been raised by him, as section 11 of the Employment Rights Act deals with circumstances where an employer does not give a worker a statement as required by either section 1 or 4 and provides that the worker has a right to require reference to an employment tribunal to determine what particulars ought to have been included or referred to in a statement, so as to comply with the requirements of the sections concerned. It would be deeply unsatisfactory, in my judgment, if a Claimant in proceedings before the Employment Tribunal, such as Mr Dowding, could initiate one claim before the Tribunal, raising contentions that section 1 had not been complied with, and then (provided he was in time to do so) issue a second claim asking the Tribunal on some different occasion to determine whether the requirements of section 4 had not been complied with.

The fact that the Claimant has appealed the matter in grounds of appeal settled by Counsel seems to me to be entirely consistent with the conclusion that his legal advisers at least accept the position that the Tribunal has resolved the issue. Mr Dowding suggests in the table of the parties’ submissions contained in the Schedule that Counsel was in error on this but I do not find that a very convincing suggestion. These grounds of appeal seem to me to be very skilfully drafted and with great care and attention to detail, and I think it is unlikely that Counsel would have ventured into formulating a ground of appeal in that degree of detail when, in truth, that was simply a matter of error. But that is very much a confirmatory point. The main points are that it seems to be that (1) this plainly was an issue in front of the Tribunal which the Tribunal resolved and (2) if, for some reason, that first finding was wrong, I consider that it is an issue which ought to have been placed in front of the Tribunal, and the Claimant should not be permitted to raise it now, having (on his case) not done so in front of the Tribunal, when he could and should have done so, in my judgment.