Abercrombie & Ors v Aga Rangemaster Ltd UKEAT/0099/12/SM

Appeal against a decision that the claimants, who agreed to a temporary reduction in their working hours during a period of economic downturn, were not entitled to guarantee payments for the day they did not work. Appeal dismissed.

The claimants, who were members of the GMB union, agreed to temporarily work 4 days a week rather than 5 when market conditions deteriorated. After the respondent refused to pay them guarantee payments for this 5th day the claimants raised a grievance which was rejected. In 2009 they lodged claims for unlawful deductions at the ET which were rejected because the claimants had not complied with the statutory grievance procedures. They applied to amend the unlawful deductions claims as claims under s34 ERA on the basis that such claims were not subject to the statutory grievance procedure – this was refused. A second claim was made in 2010 for failing to pay the guarantee payments which was also dismissed because, amongst other things, it was presented out of time. The claimants appealed.

The EAT dismissed the appeal. They ruled:

1) the claim for guarantee payments failed because in respect of the period for which claims were made the claimants would not “normally be required to work in accordance with [their] contract of employment”. It did not matter that the variation of their contracts of employment was temporary and not permanent;

2) The Employment Tribunal had no jurisdiction to include the claim for failure to make guarantee payments because the original claim was invalid as the terms of the SGP had not been complied with (applying The Highland Council v TGWU & UNISON and Others (No.2) [2008] IRLR 858). The Respondent was not estopped from denying the validity of the grievance served because an estoppel could not arise so as to confer jurisdiction contrary to the SGP requirements.  The Employment Tribunal had no jurisdiction and no discretion to hear the claim and so it could not be amended.  There were other reasons why the amendment could not be allowed in the light of the delay and other matters;

3) although the provisions relating to compliance with the SGP had been repealed, the interim regime meant the claims for unlawful deduction were all dismissed as not complying with the SGP; and

4) the 2010 claims were out of time for the reasons given by the Employment Tribunal and there was no basis for extending the time for making those claims.

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Appeal No. UKEAT/0099/12/SM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 5 July 2012

Judgment handed down on 10 October 2012

Before

THE HONOURABLE MR JUSTICE SILBER

(SITTING ALONE)

MR D ABERCROMBIE & OTHERS (APPELLANTS)

AGA RANGEMASTER LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellants MR OLIVER SEGAL (One of Her Majesty's Counsel) Instructed by: Messrs Thompsons Solicitors City Gate House Tollhouse Hill Nottingham NG1 5FS

For the Respondent MR NIGEL PORTER (of Counsel) Instructed by: DLA Piper UK LLP Victoria Square House Victoria Square Birmingham B2 4DL

**SUMMARY**

JURISDICTIONAL POINTS – Extension of time: reasonably practicable

UNLAWFUL DEDUCTION FROM WAGES

The Respondent employed the Claimants, who were members of the GMB. In order to avoid redundancies, the Respondent and GMB entered into an agreement which required the GMB to put a proposal to its members for a temporary reduction of working hours from 39 hours per week to 34 with no working on Fridays and with an equivalent reduction in pay for the period from 1 January 2009 to 26 June 2009. It was accepted by a secret ballot. After the Respondent refused to confirm that guarantee payments would be paid to the Claimants during the period of reduced working hours, a formal grievance was lodged by the GMB. The Respondent did not uphold it. On 20 June 2009, a claim for unlawful deductions including non-payment of guarantee payments was made to the Tribunal.

The reduced working hours were extended until 31 December 2009 after a ballot of the Respondent's employees accepted this. In September 2009, the Respondent invited any employee who wanted to do so to return to working 39 hours per week with Friday working from 1 October. Many employees accepted the offer, but other employees declined. On 15 February 2010, a second claim was made.

In June 2010 the Respondent alleged that the March 2009 grievance did not comply with the requirements of the statutory grievance procedure ("SGP") because it had not named any of the employees to whom it related. The Claimants accepted this was correct and they sought leave to amend the 2009 claim so as to bring claims for guarantee payments on the basis that such claims were not subject to the SGP.

The Employment Judge refused this application and he rejected the two claims. The Claimants appealed. The appeals were dismissed because: -

(A) The claim for guarantee payments failed because in respect of the period for which claims were made the Claimants would not "normally be required to work in accordance with [their] contract of employment". It did not matter that the variation of their contracts of employment was temporary and not permanent;

(B) The Employment Tribunal had no jurisdiction to include the claim for failure to make guarantee payments because the original claim was invalid as the terms of the SGP had not been complied with (applying The Highland Council v TGWU & UNISON and Others (No.2). The Respondent was not estopped from denying the validity of the grievance served because an estoppel could not arise so as to confer jurisdiction contrary to the SGP requirements. The Employment Tribunal had no jurisdiction and no discretion to hear the claim and so it could not be amended. There were other reasons why the amendment could not be allowed in the light of the delay and other matters;

(C) Although the provisions relating to compliance with the SGP had been repealed, the interim regime meant the claims for unlawful deduction were all dismissed as not complying with the SGP; and

(D) The 2010 claims were out of time for the reasons given by the Employment Tribunal and there was no basis for extending the time for making those claims.

**THE HONOURABLE MR JUSTICE SILBER****Introduction**
  1. Mr D Abercrombie and others ("the Claimants") appeal from a decision of the Employment Judge Lloyd sitting at Birmingham promulgated on 12 July 2011 by which he dismissed the Claimants' claims against AGA Rangemaster Limited ("the Respondent") for unlawful deductions and for a failure to make guarantee payments presented to the Employment Tribunal on 20 June 2009 ("the 2009 claims") and on 15 February 2010 ("the 2010 claims"). It is a matter of dispute as to whether both of those decisions are the subject of the appeal or whether this appeal relates solely to the decision in respect of the 2009 claims.
  1. The relevant facts are that the Respondent is a manufacturer of heat storage cookers with factories in a number of units in the United Kingdom and abroad. The Claimants are or were all hourly paid employees at the Respondent's Leamington Spa site. The Respondent recognised the GMB at the Leamington Spa sites where there were approximately 387 employees who were part of the GMB bargaining unit.
  1. At the beginning of December 2008, because of the worsening economic conditions, the Respondent was considering redundancies at its Leamington Spa sites. Consultations were entered into between the Respondent and the GMB and on 9 December 2008, the Respondent and the GMB entered into an agreement which required GMB to put a proposal to its members for a temporary reduction of working hours from 39 hours per week to 34 hours per week with an equivalent reduction in pay for a period from 1 January 2009 to 26 June 2009. This proposal meant that the relevant employees would not work on Fridays and that their working hours would instead be compressed into four days from Monday to Thursday except for "customer facing departments". After a secret ballot was conducted, the agreement to reduce working hours and pay was accepted by the GMB membership.
  1. On 5 March 2009, the GMB organiser of the Leamington Spa site, Mr Mohammed Khalik, asked the Respondent to confirm that the guarantee payments would be paid to the Claimants during the period when they had reduced working hours. In reply, the Respondent explained that these sums would not be paid because the reduction in working hours was the result of an agreed collective variation to the employees' terms and conditions. A formal grievance ("the March 2009 grievance") was lodged by the GMB on 24 March 2009, but it was rejected by the Respondent on 2 April 2009. The 2009 claims were then lodged.
  1. By early June 2009, there had been no improvement in trading and the GMB then asked its members to agree to an extension of the agreement for reduced working hours until 31 December 2009. This proposal was accepted as a result of a ballot of the work force conducted on 15 June 2009. In September 2009, the Respondent invited any employee who wanted to do so to return to working 39 hours per week and to return to working on Fridays from 1 October. The Employment Judge found that all employees could have returned to work between 1 October 2009 and 31 December 2009 as there was enough work, but that many employees accepted the offer while others declined. The Respondent was unable to recruit enough volunteers.
  1. On 2 November 2009, the Respondent wrote to the shop floor workers informing them that they intended to cease the existing arrangements in relation to Friday working with effect from 31 December 2009 and the employees returned to working 39 hours per week from 1 January 2010. The 2010 claim was then instituted.
**The History of the Claims and the Issues**
  1. The 2009 claims were claims for unlawful deductions of wages in respect of statutory guarantee payments under section 28 of the Employment Rights Act 1996 ("ERA"). Section 27(1)(d) of the ERA includes as "wages" payments for guarantee payments pursuant to section 28 ERA, which were therefore subject to the statutory prohibition against making unlawful deduction of wages contained in section 13 ERA.
  1. Unlawful deductions were subject to a statutory grievance procedure. The Claimants believed that the March 2009 grievance complied with the requirements of this regime and the Respondent did not disabuse them of this understanding until 29 June 2010 when the Respondent alleged for the first time that the March 2009 grievance did not comply with the requirements of that regime because the grievance had not named any of the employees to whom it related. The Claimants did not oppose the amendment by the Respondent of its ET3 so as to contain this allegation which the Claimants accept as correct.
  1. The Claimants in response to this amendment made by the Respondent then sought leave to amend its own 2009 claims at the hearing before the Employment Judge so as to bring its claims as claims for guarantee payments under section 34 ERA on the basis that such claims were not subject to the statutory grievance procedure. The Employment Judge refused that application and that refusal is the subject of a ground of appeal.
  1. The statutory grievance procedure was then repealed and there was an issue as to whether the continued failure of the Respondent to make guarantee payments was covered by this statutory grievance procedure in the light of the transitional procedures then introduced as is contended to be the position by the Respondent or whether they ceased to be covered by it as the Claimants submit was the position. I will return to consider this in paragraphs 57ff below but the approach of the Employment Judge was that the transitional provision in the statutory grievance procedure applied to the failure to make the guarantee payments and that decision is also the subject of a ground of appeal. If the Respondent is correct, then it is not disputed that the Claimants had not complied with the statutory grievance procedure.
  1. The Claimants also contend that the Respondent is estopped from disputing that the Claimants had complied with the statutory grievance procedure, as the Respondent did not contend that the March 2009 grievance did not comply with the statutory grievance procedure and that if the Respondent had done so, the Claimants would then have issued a fresh and valid grievance complaint. It is said that the Employment Judge did not deal with this allegation and this complaint is also the subject of a ground of appeal, which is dealt with in paragraph 63ff.
  1. The 2010 claims were for failing to pay the guarantee payments and the Employment Judge dismissed these claims because among other things, they were presented out of time and that it had been reasonably practicable for the Claimants to have issued their claims prior to the end of the limitation period of 3 months from the last deduction from wages. These findings are the subject of a ground of appeal and there is also an issue as to whether the Notice of Appeal raises any issue relating to the 2010 claim. The Claimants also sought at the hearing to amend its Notice of Appeal but that application was opposed by the Respondent and I will return to deal with it.
  1. The grounds raised on this appeal are: -

(A) Whether the Employment Judge was correct to reject the claims for guarantee payments ("The Guarantee Payment Issue");

(B) Whether the Employment Judge erred in refusing the Claimants' application to amend the 2009 claims to include a claim for a failure to make guarantee payments ("The Amendment Issue");

(C) Whether the Employment Judge was correct in rejecting the Claimants' submission that each failure to make a guarantee payment after 5 April 2009 was a "separate action" and instead to hold that they were part of a "series" of payments so as to be covered by the statutory grievance procedure ("The Separate Actions Issue");

(D) Whether the Employment Judge erred in not considering and not upholding the submission of the Claimants that the Respondents were estopped from disputing non-compliance with the statutory grievance procedure in respect of the 2009 claims because they had accepted the grievance as valid ("The Estoppel Issue"); and

(E) (i) Whether the appeal related to both the 2009 and 2010 claims (as contended by the Claimants) or whether it related solely to the 2009 claim as contended by the Respondents, and if it related to the 2010 claim; (ii) whether it was out of time as found by the Employment Judge or is otherwise flawed; and (iii) whether the proposed re-amendment of the grounds of appeal should be allowed ("The 2010 Claim Issue").

**Issue A: The Guarantee Payment Issue**

(i) Introduction

  1. The legislative background against which this claim is made is set out in section 28 of the ERA, which provides in so far as is material and with emphasis added, that:-

"28 Right to guarantee payment

(1) Where throughout a day during any part of which an employee would normally be required to work in accordance with his contract of employment the employee is not provided with work by his employer by reason of—

(a) a diminution in the requirements of the employer's business for work of the kind which the employee is employed to do, or

(b) any other occurrence affecting the normal working of the employer's business in relation to work of the kind which the employee is employed to do,

the employee is entitled to be paid by his employer an amount in respect of that day.

(2) In this Act a payment to which an employee is entitled under subsection (1) is referred to as a guarantee payment".

  1. It is common ground that the issue for the Employment Judge was to consider in respect of any part of a day when the claimant concerned were not provided with work, whether he or she would "normally be required to work in accordance with his contract of employment". The importance of the need to focus on the normal working hours of the employees concerned is shown by the important provision in section 30(1) ERA, which provides that:-

"no guarantee payment is payable to an employee in whose case there are no normal working hours on the day in question."

  1. The Employment Judge approached the issue by explaining that:-

a) "It is well settled that, if under the contract of employment the employer is not required to work on a particular day then there is no right to pay, nor a guarantee payment" [27];

b) In the second half of 2008, sales were lower than expected and the GMB were anxious to avoid redundancies and it was proposed that compulsory redundancies be avoided by a reduction of working hours from 39 to 34 hours with an equivalent reduction in pay for a six-month period between 1 January 2009 and 26 June 2009. This was agreed by a secret ballot held on 15 December 2008;

c) The situation in respect of the sales of the Respondent's products had not improved so that the Union suggested asking the workforce to extend continue the arrangements to 31 December 3009. This was accepted by the workforce after a ballot;

d) The Respondent sought without success to recruit many employees to return to working a 39 hour week between 1 October and 31 December 2009 and although some agreed to do so; and that

e) His conclusions were (with my emphasis added) that "91 I find that the fact of the variation was clear throughout to all parties and should reasonably have been known from the first. The circumstances of how the arrangements for reduced hours had been agreed between the GMB and the respondent had no obvious ambiguity. There had moreover been a history of requests by the workforce to reduce hours on a permanent basis. This was a logical if temporary recognition of that which suited both sides and came from the employees' side as an expedient way of avoiding job losses. The result of the temporary contractual variation was that the claimants were not during the relevant period normally required to work the hours that had been required on Fridays as part of the previous 39 hour working week."

(ii) The submissions

  1. Mr Oliver Segal QC, counsel for the Claimants, contends that the Employment Judge erred in this reasoning because first, a temporary contractual variation (as occurred in this case) did not constitute a change to "normal working hours" and second, sections 30(5) and 31(6) ERA expressly provided for entitlements to guarantee payments if "the contract has been varied, or a new contract has been entered into, in connection with a period of short-time working".
  1. Mr Nigel Porter counsel for the Respondent accepts that the relevant changes to the Claimants' contracts of employment agreed by the Respondent were temporary, but he submits first that the critical and sole factor in determining if a guarantee payment should be made is whether the conditions of section 28 ERA have been satisfied; and second that those conditions do not expressly or impliedly require any variation to the Claimants' contracts of employment to be permanent. He contends that the issue instead is whether on the day for which a guarantee payment is sought, in the words of section 28(1) ERA, the "employee concerned would normally be required to work in accordance with his contract of employment". Mr Porter also submits that sections 30(5) and 31(6) ERA deal with the quantification of claims for guarantee payment, but crucially not the liability to make them. So these provisions do not assist the case for the Claimants.

(iii) Discussion

  1. To my mind, the wording of section 28(1) ERA does not preclude an agreed temporary variation constituting a change to an employee's normal working hours so as to prevent the award of a guarantee payment merely because the variation is temporary. Section 28(1) ERA requires an investigation by the Employment Tribunal as to the position on the day when it is said that the employees had not been provided with work in order to ascertain whether the employee would as at that time "normally be required to work [then] in accordance with his contract of employment". The focus has to be on the periods when the employees are "normally" required to work, and not as contended for by the Claimants when they are "permanently" required to work. That entails asking what are the normal requirements and the wording shows that the mere fact that an arrangement is not permanent is not conclusive.
  1. Indeed, there is no requirement in section 28(1) ERA for any variation of an employee's contract of employment to be permanent. If Parliament had intended that section 28 should have that effect, it would surely not have drafted the sub-section in the way in which it was enacted. In fact, Mr Segal's submission entails rewriting section 28(1) ERA so as to insert in it the word "permanent" so that the opening words of it would then read:-

"Where throughout a day during any part of which an employee would normally be required to work in accordance with his permanent contract of employment".

  1. I am fortified in reaching that conclusion by the approach adopted in what counsel agree are the only relevant authorities and they are the Employment Tribunal decisions in Clemens v Peter Richards Limited [1977] IRLR 332, in Daley and others v Strathclyde Regional Council [1977] IRLR 414, and in Stevenson v Patonpound (trading as British Button Industries) (COIT 1376/73). These decisions, to the best of counsel's knowledge, have not been the subject of judicial criticism in the higher courts, which themselves do not appear to have considered the proper approach to section 28(1) ERA in respect of the submission that it only applies to permanent variations of working hours.
  1. The Employment Judge in this case in paragraph 58 of his Determination expressly considered the Clemens case in which the employee was originally on a five-day week in July 1974, but this was varied by mutual agreement to a four-day week about a year later. In October 1976, a decline in business meant the claimant was then put on a two-day week, which the claimants did not agree to but she went along with it but under protest. Her claim was for a guarantee payment in February 1977, which was more than four months after the introduction of the two-day week, but after provisions for the payment of guarantee payments were introduced with effect from 1 February 1977.
  1. The Tribunal found that the introduction of a two-day working week had been accepted by the claimant, which meant that she was only obliged to be provided with two days work per week by the respondent. In consequence, she was not entitled to a guarantee payment for days which she did not work, as those days had ceased to be days in which she would normally be required to work under her contract. This approach is totally consistent with the conclusion of the Employment Judge in the present case, when he held that guarantee payments cannot be claimed for any of the days on which the employee is not contractually required to work, although the point was not taken in Clemens' case that the variation in the claimant's working hours was temporary and so could be ignored.
  1. The Employment Judge had received detailed submissions on the Daley case, but it was not referred to in the decision and there was no obligation on him to do so. It is in any event supportive of the decision made by the Employment Judge in this case, as in that case the employees had contracts of employment which did not normally involve working on alternate Fridays, but the arrangement was not short term or temporary. On the facts, it was held in respect of the claimants that it was "an alteration in their normal working arrangements which they must be held to have accepted" [12]. There were therefore similarities with the position of the Claimants in the present case in that the Claimants were not required to work on Fridays. In that case, the focus of the Tribunal was whether there was an alteration in their normal working arrangements which had been accepted by the employees, which is the same approach adopted by the Employment Judge in the present case although as in Clemens' case, unlike in the present case, it was not argued in that case that the variation in the claimant's working hours was temporary and so could be ignored.
  1. In the Stevenson case, the issue for the Tribunal related to a "short term working arrangement with the union" [1]. On the particular facts of that case, the Tribunal held that the variation of the employee' contracts did not mean that he was not given work on days on which he would normally be required to work. This was a fact-specific decision which does not establish that a temporary variation of an employee's contract of employment and his hours of working can never preclude a claim for a guarantee payment.
  1. In reaching the conclusion that section 28(1) ERA requires that the focus has to be on whether the employees were "normally" required to work on the workless day or part of the day and not whether they were then "permanently" required to work, I have not overlooked Mr Segal's reliance on two statutory provisions, which relate to the method of calculating the amount of the guaranteed pay in respect of any "workless day". The amount payable is calculated by working out the "guaranteed hourly rates" by dividing the weekly pay of the worker concerned by the number of normal working hours under the contract for the "workless day" in question.
  1. This exercise has to take account of the normal working pay and working hours under the employee's contract and Mr Segal seeks to derive support for his contention that changes to contracts of employments have to be permanent before an employer can avoid liability from two provisions. The first is section 30(5) of the ERA which provides (with emphasis added) that:-

"(5) If in any case an employee's contract has been varied, or a new contract has been entered into, in connection with a period of short-time working, subsections (2) and (3) have effect as if for the references to the day in respect of which the guarantee payment is payable there were substituted references to the last day on which the original contract was in force."

  1. Mr Segal also seeks to obtain assistance for his submission from the emphasised words which also are included in the parallel, but slightly differently worded section to section 30(5) ERA, which is section 31(6) ERA and which states (with emphasis added) that:-

"(6) If in any case an employee's contract has been varied, or a new contract has been entered into, in connection with a period of short-time working, subsections (3) and (4) have effect as if for the references to the day in respect of which the guarantee payment is claimed there were substituted references to the last day on which the original contract was in force."

  1. The Claimants' case is that the Employment Judge did not address any of the issues and particularly the argument that section 30(5) ERA and section 31(6) ERA expressly provide for entitlement to guarantee payments if the "contract has been varied or new contract has been entered into, in connection with a period of short time working". Mr Segal submits that the use of these words shows that such variations do not preclude an award of guarantee payments.
  1. In support of the contrary contention that these provisions do not show that that changes to contracts of employments have to be permanent before an employer can avoid liability from guarantee payments, Mr Porter submits that:-

a) section 30(5) ERA and section 31(6) ERA are only concerned with the quantification of a guarantee payment and the limits on the payments but only when an entitlement to it has been established. Indeed the headings for sections 30 and 31 ERA are respectively "Calculation of guarantee payment" and "Limits on amounts of and entitlement to guarantee payments". Shaw LJ has stated that "it is requisite to look at headings" (Dixon v BBC , while Lord Reid has explained that they "ought to indicate the scope of the sections which follow but there is always a possibility that the scope of one of these sections may have been weakened by amendment" (DPP v Schildkamp [1971] AC1, 10); there has been no amendment to sections 30 and 31 ERA;

b) he points out that the issue of entitlement to guarantee payments is governed by section 28 ERA and that it is noteworthy that this section, which has the very significant heading of "Right to guarantee payment", does not contain any similar provisions to those set out in section 30(5) or section 31(6);

c) he relies on the fact that that sections 30(5) and 31(6) are expressed to determine the meaning of earlier sub-sections which deal with calculations and crucially not section 28 which deals with entitlement to a guarantee pay; that shows their limited use, which does not extend to determining liability.

  1. These arguments, to my mind, shows that it was the intention of the legislature that those provisions would not apply to issues of entitlement to guarantee payments. In addition, as I have explained, there is also the important provision in section 30(1) ERA, which states that "no guarantee payment is payable to an employee in whose case there are no normal working hours on the day in question" This applies irrespective of whether those arrangements are temporary or not. Pulling these threads together, the right to a guarantee payment requires consideration in respect of a day or a part of a day when work is not provided as to whether the employee concerned is "normally be required to work [then] in accordance with his contract of employment"; the issue is not whether the varied contractual arrangement is permanent or not which is not a relevant factor.
  1. It is true that the Employment Judge did not expressly address this argument relating to sections 30(5) and 31(6), but what is clear is that he was not obliged to set out every submission made by a party. The criticisms of Mr Segal fail to take account of the well-known principles relating to the reasons of Employment Judge which, with my emphasis added, have been explained by:-

a) Bingham LJ when he stated in Meek v City of Birmingham District Council [1987] IRLR 250, that an Employment Tribunal's decision "should contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic, factual conclusions" *[but the reasons are] "not required to create an elaborate product of refined legal draftsmanship."*;

b) Donaldson LJ who said in Union of Construction, Allied Trades and Technicians v Brain [1982] IRLR 22 that" I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought upon any such analysis. This, to my mind, is to misuse the purpose for which reasons are given.";

c) Keene J who said in Derby Specialist Fabrication Ltd v Burton [2001] ICR 833, 844D that "As we have already said, it must be borne in mind that the extended reasons of an Employment Tribunal are directed towards parties who know in detail the arguments and the issues in the case. The tribunal's reasons do not need to be spelt out in the detail where they to be directed towards a stranger to this dispute"; and by

d) Elias J, who stated in ASLEF v Brady [2006] IRLR 576, that "57 The EAT must respect the factual findings of the Employment Tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not 'use a fine toothcomb' to subject the reasons of the Employment Tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the Tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the Tribunal has essentially properly directed itself on the relevant law."

  1. In any event on this issue, the reasoning of the Employment Judge was adequate on this issue as in paragraph 31, he had referred to section 21 and set it out in full, while his conclusion is consistent with rejecting Mr Segal's point based on sections 30 and 31 because of its clear finding in paragraph 91 of its reasons (which I have set out in paragraph 16(e) above) that the Claimants following the variation of their contract no longer "normally" worked on Fridays. Thus there were "no normal working hours" within the meaning of section 30(1) on that day and so pursuant to that provision no guarantee payment was payable. To allow the appeal because the Employment Judge did not make specific reference to sections 30 and 31 would be inconsistent with the approaches advocated in the last paragraph and in particular the comments of Keene J and Elias J.
  1. I should add that even if, which is not the case, the Employment Judge had failed to consider Mr Segal's section 30 and 31 points, I would still have not remitted this issue, because I regard it as having no merit for the reasons which I have sought to set out. So it would not be appropriate to remit this issue in the light of the statement of Sir John Donaldson MR in Dobie v Burns International Security Services (UK) Ltd [1985] 1 WLR 43 [18] when he said that a case should not be remitted to an Employment Tribunal where the decision arrived at is "plainly and unarguably right", which I consider to be the position on this issue.

(iv) The facts

  1. The proper approach to section 28 was explained by Phillips J giving the judgment of this Appeal Tribunal in Friend v PMA Holdings [1976] ICR 330 at 332 when he stated that the issue on whether there had been a change in "normal working hours" was:-

"…did the agreement prescribing different hours for each of the employees, which was conceded to be an agreement making provisions for normal working hours continue in existence, or was it supplanted and replaced by some new agreement along the lines of the arrangements which I have just read."

  1. On the facts of that particular case, the view of this Appeal Tribunal was that there had been no express agreement between the employers and the employees. The facts of the present case are totally different because the Claimants conceded in their "Originating Application" that the cessation of work on Fridays took effect with the contracts of employment being varied. Paragraph 9.4 of the ET1 in the 2009 claim stated (with my emphasis added) that "it is significant that this agreement took effect as a 'temporary' variation to those employees' permanent employment contract terms and conditions. The purpose of the variation was to avoid compulsory redundancies…" Paragraph 9.6 of the ET1 stated that "…the collective temporary variation of the employees' hours of work which in effect reduced the working week".
  1. In addition and perhaps more importantly, the Modification Document expressly stated that the variation was for a fixed period which could be determined by notice by the employer and it provided that:-

"1. For the 6 month periods between 1st January 2009 and 26th June 2009 the working hours for all hourly paid employees will be reduced to 34 hours per week…

5. The working week… will be compressed into 4 days, Monday to Thursday…"

  1. These facts and the history of the negotiations followed by a secret ballot show that there was a variation in the contractual arrangements relating to the part of the day during "which an employee would normally be required to work in accordance with his contract of employment". Indeed if any claimant employee had been asked for his normal working hours between 1 January 2009 and 29 June 2009, his or her answer would undoubtedly and inevitably have been that he or she had to work 34 hours with no requirement to work on Fridays. In this case, the Employment Judge was entitled to reach the decision which it did and it certainly was neither an error of law or perverse.
  1. Set against that background, there can be no criticism of the Employment Tribunal's conclusion that there was an effective variation in the contracts of employment, which means that there were no days or parts of days on which any of the Claimants was not provided with work but on which he, in the words of section 28(1) ERA, "would normally be required to work in accordance with his contract of employment". So this ground of appeal fails.
**Issue B: The Amendment Issue**
  1. This issue arose because, as I have explained, the 2009 claims were presented as unlawful deduction claims and they were at the time relevant to those claims subject to a statutory grievance procedure. The Claimants considered that they had complied with it, as it was believed that they had submitted the March 2009 grievance in purported compliance with the relevant statutory grievance procedure. In their Notice of Appearance to the 2009 claim, the Respondents did not contend otherwise and indeed did not then challenge the validity of the March 2009 grievance.
  1. Subsequently, by a letter of 29 June 2010, the Respondent amended its Notice of Appearance in order to rely on the decision of the Scottish Employment Appeal Tribunal in Highland Council v TGWU and UNISON [2008] IRLR 858 so as to contend that the Employment Tribunal had no jurisdiction to consider the 2009 claim, because the March 2009 grievance did not name any of the employees to whom it related. Therefore it did not comply with regulation 9(1) (b) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 ("The 2004 regulations") and the claim could not proceed. This amendment was acceded to by agreement.
  1. The Claimants then sought to overcome the Respondent's ground of resistance by amending its claim so as to substitute claims under section 34 ERA 1996 for the alleged failure to make guarantee payment in respect of the period between 1 January 2009 and 31 December 2009.
  1. Section 34 ERA 1996 provides that:-

"(1) An employee may present a complaint to an [employment tribunal] that his employer has failed to pay the whole or any part of a guarantee payment to which the employee is entitled.

(2) An [employment tribunal] shall not consider a complaint relating to a guarantee payment in respect of any day unless the complaint is presented to the tribunal—

(a) before the end of the period of three months beginning with that day, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

(3) Where an [employment tribunal] finds a complaint under this section well-founded, the tribunal shall order the employer to pay to the employee the amount of guarantee payment which it finds is due to him."

  1. The basis on which the Claimants sought leave to amend the 2009 claim at the hearing so as to bring those claims was that the new claims were merely adding a new legal label to facts already pleaded, and additionally that such new claims did not require compliance with the statutory grievance procedure. The Respondent opposed this application relying on the principles set out in Selkent Bus Company v Moore [1996] ICR 836.
  1. The Employment Judge refused to grant the Claimants' application for permission to amend on the grounds that first it was not permissible to amend an ET1 for which the Employment Tribunal had no jurisdiction to accept it initially in its unamended form; second, that the section 34 claim was a new cause of action; third, that the new claim is out of time; and fourth, that the application to amend should have been pursued with greater expedition.
  1. Mr Segal challenges that decision on the basis that the Employment Judge was wrong as a matter of law not to permit the application for this amendment. He submits first that the section 34 claim was not a new basis of claim, but that instead that it was the same claim brought under a different label, second that different time limits did not apply, and third that the Respondent would not have been prejudiced by the amendment if it had been permitted.
  1. The case for the Respondent is that the Employment Judge was right to refuse the amendment because the original claim did not comply with the rules with the consequence that the Employment Judge had no jurisdiction to deal with it or to amend it, and that the section 34 ERA claim should be the subject of a fresh claim because the original claim was a nullity.
  1. In my view, it is necessary to analyse the status of the 2009 claim before the application was made for the proposed amendment by the Claimants and it is common ground, or at least not disputed, that:-

a) The Statutory Grievance Procedure under the Employment Act 2002 ("EA 2002") applied to the first claim for unlawful deductions from wages pursuant to Schedule 4 to the EA 2002 but that was repealed by the Employment Act 2008 (" EA 2008");

b) By the Article 3 Part 1 of transitional provisions in the Employment Act 2008 (Commencement No 1, Transitional Provisions and Savings) Order 2008 (SI/2008/3232) ("the Transitional Order"), where a claim is presented before 4 July 2009 and the action which forms the basis of a grievance begins before 5 April 2009 and continues beyond that date, the repeal in the EA 2008 of sections 29-33 of the EA 2002 does not apply. In that situation, the Statutory Grievance Procedure continues to be applicable in relation to the claims for deductions of wages and section 23 of the ERA being a jurisdiction listed in Part 2 of the Schedule to the Transitional Order;

c) The March 2009 grievance relied upon in the ET1 of the 2009 claim related to the refusal to pay guarantee payments from the introduction of the Modifications Agreement which was implemented on 1 January 2009, but it did not name any of the employees to whom it related and as such does not comply with Regulation 9(1) (b) of the 2004 regulations;

d) In consequence, there was a failure to comply with Regulation 9(1) (b) which required the claimant to have in the grievance "specified in writing to the employer (whether in setting out the grievance or otherwise) the names of at least two employees, of whom one is the employee having the grievance, as being the employees on behalf of whom he is raising the grievance";

e) This failure to comply with Regulation 9(1) (b) was conceded by the claimants and there is clear EAT authority that failure to comply with the "name requirements" means that the Statutory Grievance Procedure is not complied with (The Highland Council v TGWU & Unison & ors (No 2) (supra));

f) It follows that in the absence of compliance with the Statutory Grievance Procedure, the Employment Tribunal had no jurisdiction (and indeed no discretion: Canary Wharf v Debit to hear any claim that is dependent upon compliance with the Statutory Grievance Procedure. By the amended ET3 and letter of the same date, the Respondent had raised the issue of non compliance with the Statutory Grievance Procedure for the purposes of EA 2002 s 32(6) (b); and

g) Accordingly, the Employment Judge correctly concluded that the Employment Tribunal had no jurisdiction to hear the claims in the first claim.

  1. It now becomes necessary to see if against this background, the Employment Judge was correct to refuse to allow the Claimants to pursue the section 34 point and the starting point has to be EA 2002 section 32(2) which provides (with emphasis added) that:-

"(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if -

(a) it concerns a matter in relation to which the requirement in para. 6 or 9 of Schedule 2 applies, and

(b) the requirement has not been complied with."

  1. Under section 32 (7) of the EA 2002, the Secretary of State is empowered to make regulations about these procedures and more specifically about what constitutes compliance with paragraphs 4 and 6 of Schedule 2 . The 2004 regulations were duly made under them and as I have explained these were not complied with by the Claimants with the consequence that, as was explained by Elias P in London Borough of Hounslow v Miller Appeal No. UKEAT/0645/06 when he stated that:-

"24 In my view, once the issue of procedural compliance has arisen in a way envisaged by s.32 (6), then the Tribunal simply has no jurisdiction to hear a claim unless it is presented after compliance with the procedural steps. It may be unduly formalistic to require a fresh presentation of another claim, but it seems to me that that is what Parliament has required."

  1. I respectfully agree with that conclusion which means that the original claim was a nullity and that the application for amendment had to be refused, because, as was explained by Sir John Donaldson P in Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 at 656G-657A:-

"In every case in which a tribunal is asked to amend a complaint by changing the basis of the claim or by adding or substituting respondents they should proceed as follows.

(1) They should ask themselves whether the unamended originating application complied with rule 1 of the Schedule to the Regulations of 1972: see, in relation to home-made forms of complaint, Smith v. Automobile Proprietary Ltd [1973] ICR 306.

(2) If it did not, there is no power to amend and a new originating application must be presented. …"

  1. The principles set out in Cocking have been approved by the Court of Appeal in British Newspaper Printing Corporation (North) Ltd v Kelly [1989] IRLR 222. Underhill P in Transport and General Workers Union v Safeway Stores Ltd EAT 0092/07 said at paras 8 and 9: "the Court [of Appeal in Kelly]clearly endorsed Cocking … as showing the right approach in such a case". In consequence, the Employment Judge was correct to hold that he had no power to grant the application to amend.
  1. In any event even if the Employment Judge had power to grant the amendment, he was entitled to refuse it for the reasons which he gave namely that this application was out of time and could have been earlier. These are factors which could properly be taken into account by the Employment Judge and it is clear that the question of amendment is a case management decision for the ET to be determined by the application of a judicial discretion (Selkent Bus Co Ltd v Moore (Supra) **[19]).
  1. Accordingly, on an appeal, the test to be applied in considering whether this Appeal Tribunal should interfere with such a decision was expressed by Henry LJ, with whom Beldam LJ and Thorpe LJ agreed, in Noorani v Merseyside Tec Ltd **[1989] IRLR 184, [32], who said that:-

"I am satisfied, contrary to what the Employment Appeal Tribunal found, the ET were here exercising the classic discretion of the trial judge in the issue of witness summonses and in like matters. Such examples of such a discretion lie not only in the issue of witness summonses but whether to grant an adjournment or whether to order the trial of a preliminary issue etc. These decisions are entrusted to the discretion of the court at first instance. Appellate courts must recognise that in such decisions different courts may disagree without either being wrong, far less having made a mistake in law. Such decisions are, essentially, challengeable only on what loosely may be called Wednesbury grounds, when the court at first instance exercised the discretion under a mistake of law, or disregard of principle, or under a misapprehension as to the facts, where they took into account irrelevant matters or failed to take into account relevant matters, or where the conclusion reached was "outside the generous ambit within which a reasonable disagreement is possible", see G v. G [1985] 1 WLR at 647."

  1. The Employment Judge applied the principles in Selkent on this issue and he was entitled in the exercise of that discretion to take into account the delay in making the application (see Selkent [24]) and the ET found that the application could have been made with greater expedition and to take into account issue of time limits. I agree with Mr Porter that the decision of the Employment Judge to refuse the amendment was a permissible exercise of judicial discretion and was not perverse on Wednesbury grounds nor on the test of perversity, which was famously explained in Yeboah v Crofton [2002] IRLR 634 [93] in this way:-

"Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached."

  1. It follows that the Employment Judge did not make an error of law in refusing to accede to the application to include the section 34 claims.
**Issue C: The Separate Actions Issue**
  1. This issue arises because as I have already explained when the statutory grievance procedure was repealed by the EA2008 with effect from 6 April 2009, the Transitional Order was introduced so as to deal with various outstanding matters. Under paragraph 3(2) of Part 1 of the Schedule to that Order, it was provided in respect of the repeal of the grievance procedure that:-

"It shall not have effect where the …procedure applies by virtue of the [2004] regulations and (a) the action which forms the basis of a grievance began on or before 5th April 2009 and continues beyond that date;

and (b) the employee presents a complaint to the employment tribunal…

(i) on or before 4th July 2009 under a jurisdiction listed in Part 2 of the Schedule and section 238 of the Trade Union and Labour Relations (Consolidation) Act 1992 does not apply. "

  1. The Employment Judge accepted the submission of the Respondent that in the words of that provision, "the action", which formed the basis of the March 2009 grievance, was the reduction in working hours of the Claimants without receiving guarantee payments and this occurred before 5 April 2009.
  1. The case for the Claimants is that the Employment Judge made an error of law as each failure to make a guarantee payment was a "separate action" and so paragraph 3(2) Part 1 of the Schedule to the Transitional Order did not apply. By way of analogy, Mr Segal pointed out that the situation was analogous to first a continuing act of discrimination, such as discriminatory disciplinary process against the claimant which started in March 2009 and ended in May 2009, and second to two discriminatory disciplinary actions with one occurring in March 2009 and the other in May 2009. His case is that the Claimants are entitled to recover for the whole period from the introduction of the Modification Agreement on 1 January 2009 on the basis that the failure to make payments constituted a series of deductions and which could be recovered pursuant to section 23(3) ERA.
  1. Mr Porter contends that the claim which was made in paragraph 8.3 of the 2009 ET1 fails because the provisions of Transitional Order, which means that the grievance procedure had to be complied with as it was preserved for this claim by paragraph 3(2) of Part 1 of the Schedule to that Order. More specifically he submits that the repeal of the requirement for this procedure to be complied with does not apply where as here (a) the modified grievance procedure applied by virtue of paragraph 6 of the 2004 Regulations; (b) "the action which formed the basis of a grievance began on or before 5th April 2009 and continues beyond the date" (Schedule Part 1 Art.3); and (c) the claim is in respect of a jurisdiction, which is listed in Schedule 2 and was presented before 4 July 2009.
  1. I agree with Mr Porter that each of these requirements is satisfied. In respect of requirement (a), the modified procedure applies to claims for deduction of wages. Turning to requirement (b), the action, which formed "the basis of a grievance", was the reduction in the working week and indeed it was the subject of the formal March 24 2009 grievance. Not surprisingly para 8.3 of the 2009 claim refers to deductions in the period "01.01.2009 to 26.06.2009" and they all relate to the terms of the Modification Document. Thus this is not a case of "separate actions" as suggested by Mr Segal but a case of a "series" of actions which require and indeed have by reason of the Modification Document a "common feature" or "a course of conduct" in order to link them as was explained in Group 4 Nightspeed v Gilbert [1997] IRLR 398 [17]). Requirement (c) is satisfied as a claim for deduction of wages under section 23 ERA is one of the jurisdictions listed in Schedule 2 and the 2009 claim was presented before 4 July 2009.
  1. In consequence the Employment Judge did not err in rejecting this claim.
**Issue D: The Estoppel Issue**
  1. Mr Segal contends that the Respondent is estopped from disputing that the Claimants had complied with the statutory grievance procedure, as the Respondent did not contend prior to the commencement of the 2009 claims or until their letter of 29 June 2010 as explained in paragraph 48(d) and (e) above that the March 2009 grievance did not comply with the statutory grievance procedure. He submits that if the Respondent had raised this objection to the March 2009 grievance at the time or soon afterwards, then the Claimants would have issued a fresh and valid grievance complaint. It is said correctly that the Employment Judge did not deal with this estoppel claim and that his failure to do so is the subject of a ground of appeal.
  1. In support of this submission, Mr Segal relies on the statement in Chitty on Contract (30th Edition) Volume 1 paragraph 3-107 that:-

"Estoppel by convention may arise where both parties to a transaction 'act on assumed state of facts or law, the assumption being either shared by both or made by one and acquiesced in by the other'. The parties are then precluded from denying the truth of that assumption, if it would be unjust or unconscionable to allow them (or one of them) to go back on it…To give rise to an estoppel by convention, the mistaken assumption of the party claiming the benefit of the estoppel must, however have been shared or acquiesced in by the party alleged to be estopped; and both parties must have conducted themselves on the basis of such a shared assumption…it is not enough that each of two parties acts on an assumption not communicated to the other. Such communication may be effected by the conduct of one party, known to the other."

  1. Mr Segal also seeks to derive assistance from the obiter comments of Underhill P in Birmingham City Council v Barker and others (UKEAT/0037-43, 0045-48 0053-59/10/MW). On that appeal, the issue there being considered was whether there had been compliance with step 1 of the modified grievance procedure in the context of the grievance which under that procedure required the "basis" of the complaint to be set out (EA 2002 Schedule 2 Part 2 Chapter 2 paragraph 9(a)(iii)). Although this deficiency existed, the respondent Council were in fact able to respond to the grievance. Against that background, in Barker it was said (with emphasis added) that:-

"69. We cannot accept that reasoning as expressed. Specifically, we do not accept that the question whether "a particular form of grievance is compliant with the Regulations [Schedule 2 of the Act] ... is dependent on ... the content of the grievance together with the response". As a matter of principle the statement must be construed without reference to subsequent events (cf. Dick Lovett Ltd. v Evans (UKEAT/0211/07)). However, Mr Short sought to reformulate the Tribunal's reasoning more acceptably. He submitted that the underlying principle established by Pratt was that an employee must set out his grievance "in sufficient detail to enable the employer to respond" (see para. 44); that in the present cases it was known from the start that the Council's response would be, as it was, "wait and see"; and that in those circumstances no further detail was required or expected. The importance of the Council's letter was not that, as such, it could alter the character of the grievance stated but that it was evidence of the common expectation as to how that grievance would be handled, which informed the question of what degree of detail was required. We floated with Mr Short whether that argument could be characterised being one of estoppel by convention. He was chary about accepting that because, he said, it had not been put that way below; but he said that his approach produced the same result by another route."

  1. I have stressed the use in that extract of the word "floated" because it was not a definite view or indeed the subject of detailed submissions. Mr Segal's submission fails to appreciate that where the requirements concerning the statutory grievance procedure are not complied with, then Employment Tribunal cannot hear the claim as "there is no overriding interest of justice which can be invoked to save it" (per Elias J in Canary Wharf v Ebedi .
  1. I have already explained in paragraph 50 above that in the Miller case, Elias J explained that "In my view, once the issue of procedural compliance has arisen in a way envisaged by s.32 (6), then the Tribunal simply has no jurisdiction to hear a claim unless it is presented after compliance with the procedural steps". This shows that the requirements relating to the grievance procedure cannot be dispensed with by agreement or indeed in other way. So if the parties could not agree to regard the March 2009 grievance as valid, the Respondent could not be estopped from denying that it was valid.
  1. After I had come to the clear conclusion that the Claimants could not rely on an estoppel by convention to confer jurisdiction on the Employment Tribunal, I came across the decision of the Court of Appeal in Keen v Holland [1984] 1 WLR 251 in which they rejected a claim that a tenant was estopped by convention from relying on his statutory rights. The judgment of the Court given by Oliver LJ stated that "the jurisdiction to grant possession is exercisable only subject to the statutory provisions and it is a little difficult to see how the parties can, by estoppel , confer on the court a jurisdiction which they could not confer by express agreement" (page 261). This reasoning fortifies the conclusion to which I had already come on the basis of principle as I have explained in the previous paragraph.
  1. It is true that the Employment Judge did not deal with this estoppel issue and Mr Segal submits that the matter will have to be remitted, but Mr Porter contends that the Employment Judge was not obliged to set out in detail every point made by the parties. Even if the Employment Judge should have dealt with this convention by estoppel issue, I consider that there is no merit in the Claimants' submissions and that they are doomed to being rejected. In those circumstances, this issue should not be remitted in accordance with the statement to that effect of Sir John Donaldson MR in Dobie v Burns International Security Services (UK) Ltd [1985] 1 WLR 43 [18]) and which I quoted in paragraph 34 above.
  1. I therefore reject this ground of appeal.
**Issue F: The 2010 Claim Issue**
  1. The first issue raised in respect of the 2010 claim is whether the appeal related to both the 2009 and 2010 claims (as contended by the Claimants) or whether it related solely to the 2009 claim as is contended to be the case by the Respondent. The second issue only arises if the appeal related to the 2010 claim and that issue is whether it was out of time or otherwise invalid as found by the Employment Judge. The final issue is whether the Claimants should be allowed to amend their grounds of appeal.
  1. Mr Porter contends that the grounds of appeal only relate to the decision on the 2009 claims and that they do not relate to the decision on the 2010 claims but Mr Segal disagrees. The Claimants' Notice of Appeal refers to both claims, but the grounds of appeal do not challenge the Employment Tribunal's findings in respect of the 2010 claims or any of them. So it would follow that Mr Porter is right and it is noteworthy that it was pointed out in the Respondent's Answer served in March 2012 that the Claimants' appeal did not relate to the 2010 claims. The Claimants, however, did not seek to disabuse the Respondent of their understanding of the grounds of appeal but instead it belatedly sought to challenge the dismissal of the 2010 claim in their skeleton arguments served after 21 June 2012. I would therefore hold that the grounds of appeal did not cover the 2010 decision but the Respondent had the Claimants' written skeleton argument in good time for the hearing of the appeal and it has not been prejudiced. So I will consider the challenge to the Employment Tribunal's decision on the 2010 claims.
  1. The basic challenge set out in Mr Segal's skeleton argument is that the Employment Judge should have upheld the 2010 claim, which was for "unlawful deduction of wages in respect of non- payment of statutory guarantee payments under s28 ERA". I am unable to agree and this argument must fail because:-

(a) As I have already explained in paragraphs 19ff above, this ground was rejected in respect of the 2009 claim because the condition in section 28(1) ERA was not complied with. Similar reasoning applies with respect of the 2010 claim because of the alteration of the periods on "which an employee would normally be required to work";

(b) There was no period after 1 October 2009 when the Claimants were in the words of section 28(1) ERA "not provided with work" and so the claim failed. Indeed the Employment Judge stated that as a result of an offer made by the Respondent in September 2009:-

"89…I find that all employees could have so returned [to work] between 1 October and 31 December, since there was enough work for all. Many employees accepted the offer but others declined. The respondent despite their efforts were unable to recruit enough volunteers"; and that

(c) The **Employment Judge was correct in concluding that the three month period prior to the presentation of the claim on 15 February 2010 meant the claims could only be for the period starting on 16 November 2009. He was entitled to conclude that the claims in respect of the period prior to that time were out of time and that there was no basis for contending that it was not reasonably practicable to present the ET1 within the statutorily prescribed time limits.

  1. That means that the 2010 claims must fail unless the proposed amendment can be pursued and it can overcomes the three points, which I have set out. The proposed amendment is that:-

"If and to the extent that the Employment Tribunal had found that the 2010 claims were out of time other on the basis that set out in their reasons at paragraphs 102 to 104 (namely that a number (198) of claimants had worked every Friday between 13 November 2009 and 31 December 2009), which is denied by the claimants, then the claimants contend that: -

(1) it is entirely unreasoned and unexplained;

(2) the only basis on which such a finding was sought by the respondent was by reason of the application of section 29(4), yet

(a) that issue is not referred to by the Employment Tribunal at paragraphs 102-106,

(b) there is no finding, nor even a discussion within the decision of whether s 29(4) (b) applied (and it is unlikely on the facts that it did) namely that the claimants had unreasonably refused any offer of alternative work."

  1. This proposed amendment was only introduced late in the hearing of the appeal without any prior notice having been given to the Respondents and I would have permitted it if the Respondent would not have been prejudiced by the late amendment. Mr Porter however correctly points out, if this point had been raised in the original grounds of appeal, then on the sift, an order would have been made pursuant to Burns v Barke for the Employment Tribunal to have been required to state (i) whether it reached its decision in respect of the 198 claimants other than on the basis set out in paragraphs 102 to 104 of the decision and if so (ii) the basis for it. The matter could then have been properly considered and so the application to re-amend is too late.
  1. In any event, this proposed ground could not succeed not merely because of the matters set out in paragraph 73 (a) and (c) but also because, as I have explained in paragraph 73 (b) above, the Employment Judge found that there was no period after 1 October 2009 when the Claimants were in the words of section 28(1) ERA "not provided with work". Furthermore, bearing in mind the principles relating to the approach to be adopted to decisions of an Employment Tribunal as set out in paragraph 32 above and in particular the comments of Keene and Elias JJ, the decision of the Employment Judge is adequately reasoned. Section 29(4) (b) ERA on which the Claimants rely in the proposed amendment is not relevant as it is concerned with the provision of "alternative work" while the true position is that the Claimants had been offered their old work times and at the old wages. The stark fact is that the Claimants could not qualify for payments under section 28(1) ERA. For all those reasons, the application for leave to amend must be refused.
**Conclusion**
  1. I therefore conclude that:-

a. For the reasons set out in paragraphs 19ff above, the Employment Judge was correct to reject the claims for guarantee payments on the basis that the Claimants "would not normally be required to work in accordance with their contract of employment" on days when they were not provided with work by the Respondent as there had been an agreed variation. The mere fact that the variation was temporary was irrelevant;

b. The Employment Judge was correct for the reasons set out in paragraphs 48ff to conclude that the Claimants could not substitute claims under section 34 ERA 1996 for the claims for guaranteed payments because the Tribunal simply had no jurisdiction to hear those claims and so no amendment could be made to add a claim. The proper remedy was a fresh claim;

c. The provisions in paragraph 3(2) of Part 1 of the Schedule to the Transitional Order meant that the statutory grievance procedure applied to the Respondent's failures to make payments after 5 April 2009 for the reasons set out in paragraphs 60ff above;

d. The Respondents are not estopped for the reasons set out in paragraphs 66ff above from disputing that the Claimants had complied with the statutory grievance procedure because the Respondent had not contended prior to the commencement of the 2009 claims or until their letter of 29 June 2011 that the March 2009 grievance did not comply with that procedure. The reason for that is that the requirement relating to the grievance procedure cannot be dispensed with by agreement or indeed by other ways including by estoppel by convention and

e. The Employment Judge was quite correct to reject the 2010 claims were not presented within the requisite three-month period and it was reasonable there was no basis for contending that it was not reasonably practicable to present the ET1 within the statutory prescribed time. The application for the re-amendment has to be refused.

  1. Therefore notwithstanding the sustained and detailed submissions of Mr Segal, this appeal has to be dismissed.

Published: 11/10/2012 17:50

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