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.

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").

(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.