The claimants were Store Managers. In addition to basic pay and commission they received a Store Manager Allowance (SMA).

As the result of a reorganisation, and following a consultation process, the respondent abolished the Store Manager role, and with it SMA, and notified the claimants that from a specified date, they would be employed as Sales Advisers. SMA ceased from that date but basic pay was increased by an amount higher than SMA. The claimants worked on under the new terms. It was their case that they had done so under protest.

The claims included a wages claim in respect of SMA and a claim of failure of collective consultation. The claimants were represented by counsel at the tribunal hearing. It was common ground before the tribunal that the two claims were mutually exclusive and that either the imposition of new terms meant that the claimants had been effectively dismissed, which it was agreed would preclude ongoing wages claims, or there had been no such dismissal, precluding protective award claims.

The tribunal found that the imposition of the new terms amounted to Hogg v Dover College [1990] ICR 39 dismissals, and dismissed the wages claims. While the claimants had been dismissed for the purposes of the collective consultation claims, those claims failed because they did not have standing to bring them.

In the EAT the claimants sought to appeal the dismissal of the wages claims on the footing that, in respect of a contract-based claim, Hogg must be interpreted or applied in light of Geys v Sociéte Générale, London Branch [2012] UKSC 63; [2013] ICR 117 in which it was held that the elective theory of termination applies to contracts of employment. At a rule 3(10) hearing the judge permitted this to be run as a new point in the EAT. In their Answer, and at the full appeal hearing, the respondent challenged that decision.

Held: The point was a substantive new point in the EAT which had not been run below. The claimants therefore required permission to run it as a new point. The respondent was entitled to a review of the rule 3(10) judge’s decision, as it had not had the opportunity to be heard when it was taken. Upon review, the guidance in the authorities drawn together in Secretary of State for Health v Rance [2007] IRLR 665 was applied. This was a novel doctrinal point that was at least arguable, and had not hitherto been the subject of judicial adjudication after contested argument. However, if the point was entertained by the EAT and succeeded, a remission to the employment tribunal would then be required. Further, the claimants had been represented by specialist counsel in the employment tribunal, where the point was not run, and where the claims were fought and decided on the agreed basis that a finding that there were Hogg v Dover College dismissals would bring the wages claims to an end. Permission to run the point was refused, and the appeal was dismissed.

[Summary reproduced from judgment]