Abercrombie & Ors v AGA Rangemaster Ltd

A temporary contractual variation reducing an employee’s working days does not by itself alter the days on which the employee would normally be required to work for the purpose of statutory guarantee payments. The duration, terms and context of the variation determine whether it creates a new norm or merely a temporary departure.

An employment tribunal considering an amendment must balance the relative injustice and hardship. Formal classification as a new cause of action is not decisive. An amendment which merely gives an existing claim the correct statutory label will normally be allowed unless it causes material prejudice. A jurisdictional defect does not prevent amendment where the original proceedings were valid when commenced.

The appellants were hourly-paid factory employees whose five-day, 39-hour working week was temporarily reduced by collective agreement to four days and 34 hours because of poor trading conditions. They claimed guarantee payments for the Fridays on which no work was provided under Employment Rights Act 1996, section 28.

The Employment Tribunal dismissed claims commenced in 2009 and 2010. It held that the temporary contractual variation meant that Friday was no longer a normal working day. It also upheld procedural and limitation objections. The Employment Appeal Tribunal, in UKEAT/0099/12/SM, dismissed the employees’ appeal.

The central issues were whether Fridays remained days on which the employees would normally have been contractually required to work, whether the 2009 claims could be amended to proceed through section 34, and whether the non-returners’ 2010 claims remained viable.

1. Appeal allowed. Fridays remained days on which the employees would normally have been contractually required to work. The agreement created a temporary departure from the five-day norm rather than a replacement norm. Its limited duration, extension only to the end of the year, termination on one week’s notice and retention of 39 hours as the overtime threshold all supported that conclusion.

2. Section 28(1) of the Employment Rights Act 1996 asks whether the employee would normally be contractually required to work on the day, rather than whether the employee was actually required to work under the temporarily varied contract. An agreed contractual variation does not by itself prevent the resulting short-time arrangement from being abnormal. Sections 30(5) and 31(6) confirm that entitlement may arise during contractually agreed short-time working. A contrary construction would discourage orderly agreement between employers and employees.

3. The Employment Tribunal should have allowed the 2009 claims to be amended from section 23 claims to section 34 claims. Both routes enforced the same section 28 right on identical facts and legal conditions. The amendment was a pure re-labelling which caused no material prejudice. The fact that fresh section 34 proceedings would have been out of time carried no real weight in those circumstances.

4. The tribunal’s inability under section 32 of the Employment Act 2002 to determine the claims as originally formulated did not make the proceedings a nullity. Under section 32(6), the tribunal retained jurisdiction until it permitted the employer’s amendment and became satisfied of non-compliance. It therefore had power to permit an amendment which removed the jurisdictional difficulty.

5. The non-returners’ 2010 claims were in time. The most recent deductions occurred within three months of presentation, and earlier deductions could in principle form part of the same series under section 23(3)(a). The Employment Appeal Tribunal could not reject those claims on the new ground that work had been “provided” through the September invitation. That legally distinct case had not been advanced below, and the factual findings did not establish an unequivocal offer to every employee for the whole period.

6. The 2009 claims of all appellants and the 2010 claims of the non-returners were remitted to the Employment Tribunal for quantification and resolution of any claimant-specific issues.

1. Court of Appeal (Civil Division): Allowed the appeal in [2013] EWCA Civ 1148. It upheld the 2009 claims of all appellants and the 2010 claims of the non-returners, subject to limitation, and remitted them for quantification.
2. Employment Appeal Tribunal: In UKEAT/0099/12/SM, Silber J dismissed the employees’ appeal. He upheld the substantive decision and refusal of the proposed amendment, and treated the non-returners’ claims as untenable following the employer’s invitation to resume five-day working.
3. Employment Tribunal: Employment Judge Lloyd dismissed the 2009 and 2010 proceedings. He found that the contractual variation displaced Friday as a normal working day, rejected amendment of the 2009 claims and upheld procedural or limitation objections.