Miah: A New Argument May Not Be Available on an Employment Appeal

An Employment Appeal Tribunal appeal is usually about a legal error in the case the Tribunal was asked to decide. It is not an opportunity to replace your original argument with a different case after judgment.

Miah v London Ambulance Service NHS Trust [2026] EAT 147, decided and published on 28 September 2026, illustrates the problem. The Employment Appeal Tribunal refused permission to advance an argument that had not been run before the Employment Tribunal.

What was the omitted argument?

The dispute concerned payment and the interpretation of an employer's bulletin. The claimant had advanced one interpretation at the original hearing. The appeal sought to introduce a different argument about converting recorded shifts, described in the judgment as the conversion argument.

The EAT examined whether that argument had been raised below. It had not. Considering it would have required further disclosure, findings about the facts and additional proceedings.

There were no exceptional circumstances justifying its introduction on appeal. The appeal was dismissed. That outcome concerns the ability to raise the new argument. It should not be presented as a general ruling on every employee's entitlement to payment under similar arrangements.

Why does the original hearing matter?

The Tribunal decides the claims and issues before it, using the evidence and arguments presented. An appeal ordinarily examines whether it made an error of law in doing so.

If an argument was never raised, the Tribunal may have had no reason to hear the evidence needed to decide it. The other party may also have had no opportunity to answer it. Those consequences matter when the EAT decides whether to permit a new argument.

Discovering a possible argument after judgment does not automatically create an exception. Nor does describing it as a legal argument necessarily remove the need for further findings about the facts.

Miah does not mean a new argument can never be considered on appeal. It shows why permission is exceptional and why the court examines what was raised at the original hearing and what deciding the new argument would require.

Review the issues before the hearing

If your claim can depend on more than one interpretation of a document, identify the alternatives early. Compare your claim form, the list of issues, witness evidence and planned submissions.

The list of issues is the record of the questions the Tribunal is being asked to decide. It helps focus the hearing, but it must be read with the pleadings and any orders defining the case.

Useful checks include:

• What legal claim are you asking the Tribunal to decide?
• Which document or contractual wording supports it?
• What alternative interpretation might matter?
• What evidence would the Tribunal need for each interpretation?
• Has the argument been raised clearly enough for the other party to answer?
• What remedy are you seeking if the argument succeeds?

This is not an instruction to include every possible allegation. Adding an unsupported or irrelevant argument can obscure the issues that need deciding.

Do not assume you can save an argument for appeal

If an important argument emerges while proceedings are continuing, seek advice on whether an amendment or another express application is needed. The Tribunal decides whether it will permit a change. An amendment is not guaranteed.

After judgment, check where each proposed appeal argument was raised and how the Tribunal addressed it. A different argument may face the problem identified in Miah, even if it now seems persuasive.

Bring the claim, response, list of issues and documents relied on so the review can focus on the case the Tribunal will hear.

Frances N.U