Abercrombie v Aga Rangemaster Ltd

This appeal concerned claims by hourly-paid employees for statutory "guarantee payments" under Part III of the Employment Rights Act 1996. The Court of Appeal held that the critical word in section 28 is "normally": a contractually agreed, avowedly temporary reduction in working days does not, simply by reason of being a contractual variation, displace the pre-existing pattern of "normal" work for the purposes of section 28. Section 30(5) (and section 31(6)) reinforce that the right may arise even where contracts have been varied "in connection with a period of short-time working". The court also held that an employment tribunal should not lightly refuse permission to amend pleadings that merely re-label an existing claim (here to rely on section 34 rather than section 23) where no new facts are raised and no unfair prejudice is shown. Finally, a procedural point based on a late factual argument (that employees had been "provided with" work after an invitation to return) could not be entertained on appeal where it had not been advanced and litigated below.

This case arose from two sets of proceedings (2009 and 2010) by about 330 hourly-paid employees at AGA Rangemaster seeking guarantee payments under Part III of the Employment Rights Act 1996 following an employer/union agreement reducing the working week from five to four days for a temporary period in 2009.

Nature of the claim: The employees sought statutory guarantee payments for Fridays during the period of four-day working, arguing Fridays remained "normally" part of their contractual working week. The employer contended that the Agreement had changed the "normal" pattern while also relying on limitation and a defence under section 29(4) (offer of alternative work and unreasonable refusal) in respect of employees who were invited to return.

Procedural posture: The claims were brought to the Employment Tribunal as deductions from wages (Part II) to benefit from the "series of deductions" limitation rule; the employer relied on a jurisdictional bar under transitional provisions of the Employment Act 2002 in relation to the 2009 proceedings, and on limitation and related points in respect of 2010 proceedings. The Employment Tribunal (Judge Lloyd) dismissed both ET1s largely on procedural grounds but also made findings on the substantive issue. The Employment Appeal Tribunal (Silber J) upheld the substantive conclusion against the claimants and refused permission to amend the 2009 pleading to rely on section 34. The claimants appealed to this Court.

Issues framed by the court:

• Whether a temporary, contractually agreed reduction in working days removes the status of those days as days the employee "would normally be required to work" for the purposes of ERA 1996 s.28.
• Whether the Employment Tribunal was right to refuse permission to amend the 2009 ET1 to bring the claim under s.34 rather than s.23, thereby avoiding the 2002 Act jurisdiction point.
• Whether the non-returning employees in the 2010 proceedings were time-barred or defeated by the employer's September invitation to return.

Court’s reasoning and disposition: The court (Underhill LJ) held that the "hard" argument—that any contractual variation, even a temporary one, necessarily changes what is "normal"—was wrong. The relevant question is whether the departure from previous practice was an abnormal, temporary state; here the Agreement was avowedly temporary and terminable on short notice so five-day working remained the norm. Section 30(5) and section 31(6) show Parliament envisaged guarantee payments where short-time working had been agreed. On amendment, the court held that substituting s.34 for s.23 amounted to re-labelling the same claim and should have been permitted because it raised no new facts and caused no unfair prejudice; the EAT’s jurisdictional nullity reasoning was misplaced. As to the 2010 non-returners, the Court declined to decide a new factual/legal point (that the September invitation amounted to being "provided with" work under s.28(1)) which had not been argued below, and remitted their (timely) claims to the Employment Tribunal for quantification.

Appeal allowed in part. The Court held that an avowedly temporary contractual variation to four-day working did not displace the pre-existing five-day "normal" for the purposes of section 28 of the Employment Rights Act 1996; the Employment Tribunal had been wrong to refuse permission to amend the 2009 pleadings to rely on section 34 rather than section 23; and the non-returners in the 2010 proceedings could pursue their timely claims. The case was remitted to the Employment Tribunal for quantification of sums due.

Employment Tribunal (Judge Lloyd) dismissed the two sets of ET1s largely on jurisdiction/time grounds and refused permission to amend (reasons dated 13 July 2011). The claimants appealed to the Employment Appeal Tribunal (Silber J) which upheld the substantive decision against the claimants and refused amendment (judgment 10 October 2012). The Court of Appeal ([2013] EWCA Civ 1148) allowed the appeal in part and remitted the cases to the Employment Tribunal for quantification.