Abercrombie v Aga Rangemaster Ltd

For statutory guarantee payments, the question is whether, on the relevant day, the employee would normally have been required to work under the contract then in force. An agreed temporary variation of working hours may alter the employee’s normal working hours; permanence is not required. Where statutory grievance requirements are jurisdictional and have not been met, the tribunal has no jurisdiction to hear the claim and cannot cure the defect by amendment or estoppel. A fresh claim is required. Appellate interference with an employment tribunal’s case-management discretion is limited to recognised Wednesbury grounds. Time may be extended only where it was not reasonably practicable to present the claim within the statutory period.

The claimants, hourly paid employees, agreed through collective arrangements to reduce their working week from 39 to 34 hours, with no Friday working and a corresponding reduction in pay. They claimed statutory guarantee payments and unlawful deductions from wages for periods during which they did not work on Fridays.

The Employment Judge rejected the claims, refused an amendment to recast the 2009 claims as claims under section 34 of the Employment Rights Act 1996, held that the statutory grievance procedure continued to apply under transitional provisions, rejected the proposed estoppel, and dismissed the 2010 claims as out of time. The central issues were whether the temporary variation changed the claimants’ normal working hours, whether the defective grievance deprived the tribunal of jurisdiction, and whether the 2010 claims could proceed.

1. Appeal dismissed. The agreed variation meant that the claimants were not normally required to work on Fridays during the relevant periods. Under section 28(1) of the Employment Rights Act 1996, the relevant inquiry concerns the employee’s normal contractual working requirements on the day in question. A variation need not be permanent. Section 30(1) also precluded guarantee payments where there were no normal working hours on the relevant day. Sections 30(5) and 31(6) concerned calculation and limits, rather than the existence of entitlement.
2. The March 2009 grievance failed to comply with regulation 9(1)(b) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 because it did not name the employees concerned. The transitional provisions preserved the statutory grievance procedure for the 2009 claims. Non-compliance deprived the Employment Tribunal of jurisdiction. The original claim was therefore a nullity and could not be amended to add section 34 claims. A fresh claim was required.
3. An agreement or estoppel by convention could not confer jurisdiction contrary to statutory requirements. The Employment Judge’s failure expressly to address the estoppel argument did not require remittal because the argument was legally incapable of succeeding.
4. The refusal to amend was also a permissible case-management decision. Delay and limitation issues were relevant, and appellate intervention was confined to recognised Wednesbury grounds or perversity.
5. The 2010 claims failed because the claimants were not deprived of work after 1 October 2009 in circumstances engaging section 28(1), and claims outside the three-month period were not shown to have been presented late because it was not reasonably practicable to present them earlier. The proposed late re-amendment was refused.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Judge’s decision promulgated on 12 July 2011.