Miah v London Ambulance Service: EAT refuses to hear new argument in Christmas pay appeal

The Employment Appeal Tribunal has dismissed an ambulance worker's appeal over Christmas disruption payments, holding that he could not rely on an argument that was never put to the employment tribunal.

In Miah v London Ambulance Service NHS Trust [2026] EAT 147, His Honour Judge James Tayler, Deputy President, reiterated that the EAT will entertain a new point only in exceptional circumstances, particularly where it would require further findings of fact.

Shifts reclassified

Bilal Miah, an emergency ambulance crew member, claimed unlawful deductions from wages for shifts worked on 25, 26 and 27 December 2021. Under a bulletin of 2 November 2021, winter payments were available. His shifts were first recorded as overtime, but in January 2022 he asked for them to be changed to core shifts. The trust then suspended a disruption payment of £1,050 because the shifts were now core, and declined to revert them to overtime.

In correspondence, Mr Miah advanced two arguments. The first was that, properly construed, the bulletin entitled him to disruption payments on core shifts. The second was that the shifts should not have been reclassified, or should have been converted back to overtime. At the tribunal hearing in April 2022, where he was represented by the Free Representation Unit, only the construction argument was pursued. Employment Judge Youngs concluded that the payment applied only to overtime, and the claim failed.

Narrowed grounds

A Rule 3(10) hearing before His Honour Judge Beard allowed the appeal to proceed on two related grounds, both concerning the conversion argument. The first was that the tribunal failed to consider whether the trust followed its own policies when changing shifts and processing timesheets containing an error; the second, alternatively, was inadequate reasons. All other grounds, including those relying on the construction argument, were dismissed by consent.

Mr Miah made no application under section 8.13 of the EAT Practice Direction, on arguments not raised below. Judge Tayler pointed to the summary of authority in CJ v PC [2024] EAT 182 and stressed the importance of finality. A tribunal hearing, he said, should be the end of a dispute rather than a starting point, and save in exceptional circumstances it cannot be an error of law to fail to decide a point that was never argued.

The judge also noted the increasing use of generative AI to draft grounds of appeal, which often raise points not argued below. Litigants in person remain fully responsible for what they advance however grounds are produced, citing Hancox v Sutherland and others [2026] EAT 139. Here the grounds were drafted by a representative under the Employment Law Appeal Advice Scheme, but a similar responsibility fell on the appellant, who must tell such a representative if a point was not raised below.

No exceptional circumstances

Mr Miah's skeleton argument sought to revive the construction argument without an application to amend. Judge Tayler noted that the earlier dismissal could only have been challenged in the Court of Appeal, and that any such challenge would have been hopeless because it was by consent.

The judge found no exceptional circumstances. Mr Miah had raised both points in correspondence but chose to run only one before the tribunal. Permitting the point would also probably require a further hearing, given reliance on documents that were not before the tribunal, some postdating it, and his request for specific disclosure.

The appeal was dismissed. An application for a preparation time order was also refused, the judge finding that it rested largely on delay caused by without prejudice negotiations, privilege in which had not been waived, and on arguments that had failed.