EAT 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 and 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;
(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.
Silber J
[2012] UKEAT 0099 – 12 – 1010, [2013] ICR 213, [2013] IRLR 13
Bailii
Employment Rights Act 1996
England and Wales
Cited by:
Appeal from – Abercrombie and Others v Aga Rangemaster Ltd CA 11-Oct-2013
The court considered the calculation of guarantee payments to be paid under the 1996 Act to employees who have been laid off or placed on short-time working because of a downturn in business. . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 09 November 2021; Ref: scu.464795
