The Claimant won his claims against the Respondent. He prepared a schedule of loss which included an amount to account for the NI he would have to pay on his compensation award, not realising that NI is not payable and therefore this element should not be grossed up. The Respondent had prepared a counter schedule but this particular issue had not been considered until after the full award was paid by the Respondent and the relevant tax paid to HMRC. The Respondent appealed on the basis that it was an error of law to gross up in respect of NI. The Claimant later accepted that this was indeed an error of law but continued to maintain that it was not open to the Respondent to argue the appeal because it was relying on a “new point”.

The EAT dismissed the appeal. The point was a “new point” but it would not have caused the Claimant to conduct the case differently in the ET. The EAT could in principle issue a new judgment without the matter being remitted to the ET. However the EAT still had a discretion as to whether to allow the new point to be taken. The EAT was not satisfied that the Claimant would not suffer substantial prejudice if the point was allowed to be taken because of the tax he had already had to pay and difficulties “unscrambling” the issues.