England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE SILBER
UKEAT/0099/12/SM

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th October 2013

Lord Justice Underhill :

INTRODUCTION

1. This case concerns a claim for guarantee payments under Part III of the Employment Rights Act 1996 (which re-enacts provisions originally introduced by the Employment Protection Act 1975). Guarantee payments are, in broad terms, payments which an employer is required by statute to pay to employees who have been laid off or placed on short-time working because of a downturn in his business. They are of practical significance only in cases where the employer would not be required under the contract of employment to pay the employee for the days in question; generally the terms of the contract, properly understood, will in fact oblige him to do so, irrespective of the availability of work, so long as the employee is ready and willing to work. Perhaps for that reason cases about Part III (or its predecessor provisions) seem to be rare: it appears that this is the first to have reached the Court of Appeal.
2. It will be convenient to set out at the start the main relevant provisions of Part III.

(1) Section 28, which is headed "Right to Guarantee Payment", enacts the substantive right. It reads (so far as material) as follows:

"(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.

(3)     In this Part—

(a)     a day falling within subsection (1) is referred to as a "workless day", and

(b)     "workless period" has a corresponding meaning.

(4)-(5) ..."

(2) Section 29 provides for certain exclusions from the right. I need only set out sub-section (4), which deals with the situation where the employer offers the employee alternative work. It reads:

"(4)     An employee is not entitled to a guarantee payment in respect of a workless day if—

(a)    his employer has offered to provide alternative work for that day which is suitable in all the circumstances (whether or not it is work which the employee is under his contract employed to perform), and

(b)     the employee has unreasonably refused that offer."

(3) Section 30 provides for how the guarantee payment is to be calculated. The principal operative provisions are sub-sections (2) and (3). No issue arises as to them for present purposes, but I should set out the terms of sub-section (5) because it is relevant to one of the issues which we have to consider. It reads:

"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."

(4) Section 31 provides for various limits on the entitlement under section 28, including (by sub-section (1)) a cap, which was at the time material to the present claims set at £21.20. Sub-section (6) contains a similar provision to section 30 (5), covering the case where "an employee's contract has been varied, or a new contract has been entered into, in connection with a period of short-time working".

(5) Section 34 confers jurisdiction on the employment tribunal to determine claims for guarantee payments: it also provides for a three-month limitation period. It reads, so far as material, as follows:

"(1)     An employee may present a complaint to an employment tribunal that his employer has failed to pay the whole or any part of a guarantee payment to which the employee is entitled.

(2)     An employment tribunal shall not consider a complaint relating to a guarantee payment in respect of any day unless the complaint is presented to the tribunal—

(a)     before the end of the period of three months beginning with that day, or

(b)     within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

(2A) ...

(3)     Where an employment tribunal finds a complaint under this section well-founded, the tribunal shall order the employer to pay to the employee the amount of guarantee payment which it finds is due to him."

3. Although the substantive issue in the underlying proceedings involves a straightforward question about the construction of section 28 (1), and/or its application to the circumstances of the present case, it comes wrapped in a miasma of procedural technicality which requires me to set out the history of the proceedings in laborious detail.

THE FACTS IN OUTLINE

4. The Claimants in these proceedings, who are the Appellants before us, were at the material times hourly-paid employees of the Respondent at its factory in Leamington Spa: they number about 330^[1]. They had a contractual working week of 39 hours, worked Monday-Friday. As a result of poor trading conditions the Respondent in late 2008 reached an agreement with the recognised trade union, the GMB, (confirmed by a ballot) for a reduction in working hours to 34 hours per week, worked Monday-Thursday: I will refer to that as "the Agreement". The Agreement initially ran from 1 January to 26 June 2009, but it was subsequently extended to 31 December 2009. I need not set out its terms in detail, but I should note that it contained a provision allowing the Respondent to cancel it, so that there was a return to full-time working, on one week's notice. Once so agreed the revised hours became incorporated, so long as the Agreement was in force, in the contracts of employment of the individual employees.
5. By September 2009 it became clear that work was picking up. There were discussions with the Union. I give more details at para. 60 below, but in short the outcome was that, although the Respondent did not exercise its right to cancel the Agreement, it did make it known to employees that they could return to the pre-Agreement working hours with effect from the beginning of October (the first Friday was 2 October). Some did so, but others preferred to continue working the shorter hours until the Agreement expired at the end of the year.

THE CLAIMS AND THE PROCEDURAL HISTORY

6. The Union claimed that during the currency of the Agreement Fridays were "workless days" within the meaning of section 28 of the 1996 Act, in respect of which the employees to whom it applied were entitled to guarantee payments. The Respondent did not accept that: in short, it said that the effect of the Agreement was that while it remained in force Fridays were not days on which employees were "normally … required to work". Accordingly on 20 June 2009 the Claimants commenced proceedings in the Employment Tribunal.
7. I need at this point to identify a peculiarity of the 1996 Act, namely that claims for the various kinds of statutory payment for which it provides may be made to the Employment Tribunal not only under the specific jurisdiction conferred in relation to that right – such as, in the present case, by section 34 – but also under the general jurisdiction in relation to deductions from wages created by Part II (the so-called "Wages Act" provisions). The key provisions of Part II for present purposes are as follows:

(1) Section 13 creates the basic right not to suffer unauthorised deductions from wages.

(2) "Wages" are defined in section 27. Sub-section (1) (d) expressly brings guarantee payments under section 28 within the definition.

(3) Section 23 confers jurisdiction on the Employment Tribunal to determine complaints of unauthorised deductions and also provides for the time in which such claims must be brought. It reads (so far as material) as follows:

"(1)     A worker may present a complaint to an employment tribunal—

(a)     that his employer has made a deduction from his wages in contravention of section 13 ...;

(b)-(d) ... .

(2)     Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with—

(a)     in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or

(b)     ... .

(3)     Where a complaint is brought under this section in respect of—

(a)     a series of deductions or payments, or

(b)     ...

the references in subsection (2) to the deduction ... are to the last deduction ... in the series ... .

(3A)    ...

(4)     Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.

(5)     ... ."

8. It is important for present purposes to appreciate the effect of section 23 (3): where there has been a "series" of deductions the time for claiming in respect of any of the deductions in the series runs from the date of the last of them. This has no equivalent in the provisions conferring jurisdiction in relation to specific statutory payments, such as section 34. The limitation regime under Part II is thus more generous to claimants than that under the "jurisdiction-specific" provisions. Anomalous though it may seem for the same statutory right to be enforceable under two different regimes enacted by the same statute, it was confirmed by the House of Lords in HMRC v Stringer [2009] ICR 985^[2] that that is indeed the case. No doubt in order to take advantage of this feature – since otherwise the claim would have been out of time in relation to any workless days prior to mid-March – the Claimants' ET1 expressly identified the claim as being for "unlawful deduction of wages", i.e. as being made under Part II.
9. The Respondent's response, lodged in July 2009, took the single point to which I have already referred, namely that the effect of the Agreement was that so long as it remained in force the Claimants were not "normally" required by their contracts of employment, within the meaning of section 28, to work on Fridays and that accordingly no right to a guarantee payment arose. The Claimants' case, by contrast, is that because the Agreement represented a merely temporary change their "normal" requirement remained throughout to work Fridays. I refer to this as "the substantive issue".
10. Those proceedings, to which I will refer as "the 2009 proceedings", could only of course determine the claim as regards workless days up to the date that proceedings were commenced. Further proceedings were needed to cover the period up to the expiry of the (extended) Agreement. The Claimants commenced such proceedings on 15 February 2010 ("the 2010 proceedings"). The claim was pleaded in substantially identical terms to the 2009 proceedings: in particular, it was again formulated as a claim for deduction of wages under Part II of the 1996 Act.
11. In its response to the 2010 proceedings the Respondent again raised the substantive issue as to the application of section 28; but it also raised two other, related, points under the heading "jurisdiction". Both depended on the opportunity afforded to employees in September 2009 to return to five-day working (see para. 5 above): I will refer to this, without prejudice to its precise status, as "the September invitation". I take the two points in turn.
12. First, at para. 17 of its pleading the Respondent averred that the September invitation was reasonable. Para. 18 then reads:

"It follows that by application of section 29 (4) ERA any right to a guarantee payment ceased thereafter (either because the employee had refused to undertake the work which refusal would be unreasonable or because, in relation to those who did work, they were remunerated for that work and can have no subsequent entitlement to a guarantee payment …)."

I have set out the terms of section 29 (4) at para. 2 (2) above: in short, it removes the entitlement of the employee to a guarantee payment where he has unreasonably refused an offer of alternative work. It is then pleaded, at para. 19, that "in the premises" the claims are out of time having regard to the fact that the proceedings were not lodged until 15 February 2010.

13. With all respect to the pleader, there is some confusion there. Two classes of Claimant are referred to in the brackets in para. 18 – "those who did work", sc. in response to the September invitation, and "[those] who had refused to undertake the work"; I will call them "the returners" and the non-returners"^[3]. It is necessary to distinguish between them in considering the effect of the invitation:

(1) In the case of the returners the Respondent would have a defence which was in part substantive and in part based on limitation. It would be substantive as from the time that they resumed working a five-day week, because self-evidently they could not claim in respect of days when they had worked; but it would depend on limitation as regards any workless days up to mid-November, because those occurred more than three months before the commencement of proceedings (and were not part of a series ending within the three-month period). To anticipate, both points are obviously correct, as was in due course conceded (see para. 25 (1) below); and we are now only concerned with the non-returners. But neither point has anything to do with section 29 (4), as averred at para. 18 of the pleading, and the reference to it in the case of the returners is a red herring.

(2) In the case of the non-returners also it is, to put it no higher, debatable whether any defence based on the September invitation has anything to do with section 29 (4), but this is for a different reason. As noted below (see para. 59), Silber J in the EAT took the view that the effect of the invitation was that the Claimants could not thereafter assert that they had not been "provided with" their normal contractual work, within the meaning of section 28 (1), and that section 29 (4) was inapplicable because it was concerned with alternative work. But even if he was wrong about that the pleading is still inaccurate, since the point on section 29 (4) is a substantive one and has nothing to do with "jurisdiction", as averred at paras. 17 and 19.

As will appear, the undiscriminating reference to the Respondent's case based on the September invitation as "the section 29 (4) point" and/or as being a time/jurisdiction point led to some confusion at later stages of the proceedings.

14. Secondly, at para. 20 it is pleaded that the claims of the returners^[4] are out of time "on the ground that they suffered no alleged deduction … on or after 16 November". This plea overlaps with that at paras. 18 and 19, and my comments at para. 13 (1) above apply equally.
15. At the same time as the Respondent lodged its response in the 2010 proceedings, which was on 29 June 2010, it made an application to amend its response in the 2009 proceedings in order to take a (different) point going to the jurisdiction of the Tribunal. The point derived from the regime introduced by Part 3 of the Employment Act 2002, which (in short, and so far as material for present purposes) debarred tribunals from entertaining claims where the employee had not first followed a statutorily prescribed dispute resolution procedure. Part 3 was repealed, after a short and unpopular life, by the Employment Act 2008, with effect from 5 April 2009; but the transitional provisions provided that in some circumstances it continued to apply to proceedings commenced (as the 2009 proceedings were) up to 4 July 2009. It is necessary to set out the key provisions of section 32 of the 2002 Act, which are as follows:

"(1) This section applies to the jurisdictions listed in Schedule 4.

(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if—

(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and

(b) the requirement has not been complied with.

(3)-(5) ...

(6) An employment tribunal shall be prevented from considering a complaint presented in breach of subsections (2) to (4), but only if—

(a) the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings, or

(b) the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with regulations under section 7 of the Employment Tribunals Act 1996 (c.17) (employment tribunal procedure regulations).

(7) The Secretary of State may for the purposes of this section by regulations—

(a)-(b) …;

(c) make provision about circumstances in which a person is to be treated as having complied with paragraph 6 or 9 of that Schedule;

(d) … .

(8)-(10) … ."

The jurisdictions listed in Schedule 4 to the Act included claims under section 23 of the 1996 Act, although not – an important point, whose significance will become clear shortly – claims under section 34. The "requirements" in Schedule 2 referred to at sub-section (2) are the requirements to comply with the statutory grievance procedures there set out: no point arises on their details, and I need not rehearse them here. The regulations made under sub-section (7) are the Employment Act 2002 (Dispute Resolution) Regulations 2004. For present purposes I need only refer to regulation 9, which provides, in summary, that the requirements of the statutory grievance procedures will be "treated as" having been complied with if the subject-matter of the complaint has been raised by way of a collective grievance.

16. The Respondent's point based on those provisions was as follows. It was common ground that none of the Claimants had lodged individual grievances as required by section 32 (2) of the 2002 Act; but a collective grievance had been raised in March 2009 and both parties initially believed that it met the requirements of regulation 9, so that the Claimants could be treated as having complied with the relevant requirements. However what the Respondent now said was that that was wrong and that the formal requirements of regulation 9 had not in fact been satisfied: since it is accepted before us that that was correct I need not try to explain the formidable technicalities involved. It is important to note that this point was only available in relation to the 2009 proceedings: by the time the 2010 proceedings were initiated the 2002 Act was definitively defunct.
17. At the stage when this point was raised a hearing was listed for November 2010. In their skeleton argument lodged in late October for the purpose of that hearing the Claimants disputed that the 2002 Act point was open to the Respondent, on the basis (a) that the transitional provisions accompanying the repeal of the Act did not apply to the claim and (b) that it was in any event estopped from taking the point: neither of those arguments is pursued before us, and I need give no further details. But they also indicated that they would if necessary seek permission to amend the ET1 in order to formulate the claim as being brought under section 34. As noted above, claims under section 34 fell outside the regime of the 2002 Act: thus the amendment, if allowed, would dispose of the jurisdiction problem in the 2009 proceedings altogether, though at the price of the Claimants being unable to claim (at least in those proceedings) in relation to the period from January to mid-March 2009. The Respondent lodged a skeleton argument in response resisting the application for permission.

THE DECISION OF THE EMPLOYMENT TRIBUNAL

18. In the event, the hearing listed for November 2010 did not proceed. The case came before Employment Judge Lloyd, sitting in Birmingham, on 8 and 9 June 2011. The Claimants were represented by Mr Oliver Segal QC and the Respondent by Mr Nigel Porter. Both counsel also appeared in the EAT and in this Court (with Mr Charles Sparling coming in as Mr Segal's junior before us).
19. A Judgment with Reasons was sent to the parties on 13 July 2011. The Judgment reads as follows:

"1.1 The claimants' claims for unlawful deductions under s. 23 ERA 1996 in "the first claim" of 20 June 2009 are dismissed.

1.2 The claimants' application for leave to amend the first claim to include an alternative claim under section 34 ERA 1996 for failure to pay guarantee payments is refused.

1.3 The claimants failed in relation to the first claim to comply with the provisions of the statutory grievance procedure ("SGP") at Schedule 2 EA 2002. The tribunal has no jurisdiction to hear the claims.

2.1 The claimants' claims for unlawful deductions under s. 23 ERA 1996 in "the second claim" of 15 February 2010 are also dismissed.

2.2 The second claim was presented out of time and is not within the tribunal's jurisdiction.

2.3 It was reasonably practicable for the claimants to issue their claims prior to the end of their limitation period of 3 months of the last alleged unlawful deduction from wages."

20. That Judgment reads as though the Judge had decided the claims in both sets of proceedings on the basis purely of the procedural/jurisdictional objections which I have identified above. Although the first element in each part of the Judgment (i.e. 1.1 and 2.1) states a general conclusion, the structure appears to be that the basis for that conclusion is in the decisions which follow – namely, in the case of the 2009 proceedings, that the Claimants have failed to comply with the requirements of Part 3 of the 2002 Act (and cannot amend); and, in the case of the 2010 proceedings, that the claims are out of time. As will appear, however, that analysis does not fully reflect the Judge's actual reasoning as set out in the Reasons.
21. Turning to the Reasons, paras. 1-70 set out the background, the issues and the parties' submissions. Paras. 71-94 are headed "Findings of Fact". However, contrary to what that heading might suggest, this section contains not only findings of fact but the Judge's conclusion on the substantive issue. That is made clear in para. 71, which reads:

"I find that on a substantive appraisal of the claimants' cases they are not entitled to recover guarantee payments as claimed. In any event there are procedural grounds on which the tribunal concludes it has no jurisdiction to hear the proceedings in both ET1s."

The paragraph containing the Judge's reasoning on the substantive issue is para. 91, which reads:

"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 hours working week."

22. The final two sections of the Reasons are headed "Findings on the Procedural Issues" (paras. 95-106) and "Conclusion" (paras. 107-111). The "Conclusion" section contains no detailed reasoning and is in substantially identical terms to the Judgment which I have set out above. I should set out paras. 95-106 in full:

"95. It is now acknowledged on behalf of the claimants that in relation to the first claim the grievance relied on is not compliant with the 2004 Regulations then in force. There has been an application to amend the first claim; to include a s.34 ERA 1996 claim.

96. I am refusing that amendment application. In doing so I give careful scrutiny to the principles of Selkent Bus Co. Limited v Moore [1996] ICR 836.

97. I find that the s.34 claim is not pleaded in the ET1. I conclude that to allow this application would indeed admit a new cause of action. Such action is now out of time there has been no earlier application to amend in this respect; which could in my view been addressed with much greater expedition.

98. There is I conclude considerable force in the argument of respondent's counsel that it is not permissible to amend an ET1 which the tribunal has no jurisdiction to accept in the first place. Mr Porter has properly cited EA 2002 s.32(2) in this context.

99. In relation to the issue of non-compliance with the grievance procedures and the application of EA 2002 s.32(6)(b). There is no discretion to accept a claim form where jurisdiction does not exist.

100. Moreover, in relation to the first claim the series of deductions relied upon began on or before 5 April 2009 and continue beyond that date. In short, and having regard to the transitional provisions "the action" which forms the basis of grievance began before the said date. The claim was presented before 4 July. Thus ss. 29-33 [sc. of the 2002 Act] continue to apply as does therefore the statutory grievance procedure. Section 23 ERA is one of the jurisdictions listed in Part 2 of the Schedule to the Transitional Order 2008.

101. In relation to the jurisdictional issues on the second claim I conclude thus:

102. I have found that the tribunal has no jurisdiction in the first claim. In the context of the post-5 April 2009 period the claims in the second ET1 are out of time. The date of presentation of the second claim – of unlawful deduction of wages – was 15 February 2010. The three month period immediately preceding that date takes us back to 16 November 2009. Accordingly unlawful deductions of wages pleaded must, to be within time, have been suffered after 16 November. Events of alleged deduction before that date are out of time. To rely on the "series of deductions" provision the last of the series must have occurred less than three months before presentation of the ET1. I am with the respondent's counsel in taking the view that matters prior to 16 November are out of time.

103. There is no evidential basis on which I can conclude that it was not reasonably practicable to present within the statutorily prescribed time limits.

104. A significant number of claimants worked each Friday from 13 November 2009. In relation to those employees their claims are out of time. Their last non-working Friday was thus 6 November 2009. Wages were payable one week in arrears on a Friday. They would have been paid on Friday 13 November. That is more than three months before the submission of the ET1 on 15 February 2010. The claimant's counsel has argued that time should run from 31 December 2009 for the period October to December 2009. But that is not supported by a proper application of s.23 and also the guarantee payments provisions are to the effect that such a payment is payable for a workless day. Time starts to run under s. 34 from that workless day.

105. Only if the employees were entitled to a guarantee payment in respect of Friday 13 November because they did not work it would their claim in relation to that day be in time because the wages would have been payable on 20 November. If they could show that the deduction was the last in a series of deductions then earlier deductions would be recovered (ERA s.23(2)(a) [sic: the reference should be to section 23 (3) (a)]).

106. My finding on the December 2008 agreement however is, that it amounted to a contractual variation of terms and that no guarantee payments were due."

23. I will analyse separately that reasoning as it applies to the 2009 and the 2010 proceedings.
24. The 2009 proceedings. The reasoning relating to the 2009 proceedings (paras. 95-100) is relatively straightforward. It can be summarised as follows:

(1) Para. 95 records a concession made by Mr Segal that the requirements for a valid collective grievance had not been satisfied. That did not involve him conceding that the 2002 Act was fatal to his case as originally pleaded because of the two points which I have identified as (a) and (b) at para. 17 above. Point (a) is addressed by the Judge at para. 100. Point (b) is not addressed, which was a matter of complaint by Mr Segal in the EAT. But neither point is relied on before us, and I need say no more about them.

(2) Paras. 96-99 address the amendment application, which the Judge refuses for the reasons given.

(3) As already noted, para. 100 is concerned with Mr Segal's point on the transitional provisions in the 2008 Act.

(4) Accordingly, notwithstanding that he had made a finding on the substantive issue, that did not form part of the Judge's dispositive reasoning. As trailed at para. 71 and as reflected in the terms of the Judgment, he did indeed decide the 2009 claims purely on procedural/jurisdictional grounds – that is, that the claim as pleaded fell foul of the 2002 Act and that permission to amend to get round that problem should not be granted.

25. The 2010 proceedings. The reasoning relating to the 2010 proceedings (paras. 101-106) is less straightforward. Para. 102 appears to be essentially prefatory to the detailed reasoning which follows (though, as will appear, it may not accurately reflect it); and para. 103 is uncontroversial. I accordingly start with paras. 104-106. These consider in turn the positions of the returners and the non-returners (using those terms in the sense explained at para. 13 above). Specifically:

(1) Para. 104 is concerned with the returners. They had had, by definition, no workless days in the three-month period prior to the issue of proceedings on 15 February 2010 and thus had no claim in respect of that period. As regards their claims in respect of workless days prior to their return to work, those claims were out of time (there being, as recorded at para. 103, no basis for a "not reasonably practicable" argument). This is plainly correct, and it was common ground before us that Mr Segal had conceded it in his closing submissions in the ET, albeit that the Judge does not record the concession.

(2) Paras. 105 and 106 are concerned with the non-returners. It is necessary to take the two paragraphs in turn.

(3) At para. 105 the Judge acknowledges both (a) that the claims of the non-returners in respect of workless days after 13 November are within time and (b) that the non-returners could in principle invoke the "series of deductions" provision in respect of workless days prior to that date. That also seems plainly correct, and in fact Mr Porter told us that he had made a formal concession in the ET to that effect, subject to his "section 29 (4) case" (though again the Judge does not acknowledge that the point had been the subject of a concession).

(4) However, although the non-returners' claims were in time, at para. 106 they are dismissed on the merits because the Judge found for the Respondent on the substantive issue. That that is his reasoning is clear, both from the structure of the paragraphs and from the detailed wording (NB in particular the "however" with which para. 106 starts). Although para. 106 contains no reasoning on the substantive issue, the Judge was evidently relying on his previous "finding" at para. 91, which I have set out above.

(5) It is important to note, in view of subsequent arguments, that no part of that reasoning had anything to do with the September invitation or with section 29 (4).

As I say, that reasoning is clear enough if paras. 104-106 are read carefully. But it is not accurately reflected in the Conclusions section of the Reasons and the Judgment – or indeed in para. 71 or the second and last sentences of para. 102. It is not the case, as there stated, that all the claims in the 2010 proceedings were dismissed because they were out of time. That was (partly) true about the returners, but the claims of the non-returners were dismissed because of the conclusion which the Judge reached on the substantive issue. This mismatch between the detailed reasoning in the Reasons and the terms of the Judgment led to some confusion before the EAT.

THE APPEAL TO THE EMPLOYMENT APPEAL TRIBUNAL

26. The Claimants appealed to the EAT. Their Notice of Appeal pleaded four grounds. The first two grounds were:

(1) that the Employment Judge had simply failed to engage with the substantive issue at all and that it should have been decided in the Claimants' favour; and

(2) that the Judge was wrong to refuse permission to amend the 2009 proceedings in order to allow the Claimants to rely on section 34.

The other two grounds addressed the points which I have identified as (a) and (b) para. 17 above, which are not live before us.

27. The appeal was heard by Silber J, sitting alone, on 5 July 2012. Judgment was handed down on 10 October 2012.
28. Mr Porter took the point in the EAT that the Notice of Appeal contained no challenge to the decision in the 2010 proceedings. He said that the Judge had held that all the claims in those proceedings were out of time – on, he said, the basis of his "section 29 (4) point"; and none of the pleaded grounds addresses that issue. That would be a reasonable point if one looks only at the terms of the Judgment, which, as discussed above, do indeed give the impression that all the claims in the 2010 proceedings were held to be out of time; but it evaporates if one looks at the Judge's actual reasoning. In any event Mr Segal did not accept that it was well-founded: although he accepted that the claims of the returners were out of time, he correctly maintained that the claims of the non-returners had been decided on the basis of the substantive issue, which was the subject of ground (1) in his Notice of Appeal, and not on the basis of section 29 (4) or any other point. However, no doubt as a precaution, he asked for permission to amend the Notice of Appeal in the following terms:

"If and to the extent that the Employment Tribunal had found that the 2010 claims were out of time other [than] on the basis that [is] set out in their reasons at paragraphs 102 to 104 (namely that a number (198) of claimants had worked every Friday between 13 November 2009 and 31 December 2009), which is denied by the claimants, then the claimants contend that: -

(1) it is entirely unreasoned and unexplained;

(2) the only basis on which such a finding was sought by the respondent was by reason of the application of section 29(4), yet

(a) that issue is not referred to by the Employment Tribunal at paragraphs 102-106,

(b) there is no finding, nor even a discussion within the decision of whether s 29 (4) (b) applied (and it is unlikely on the facts that it did) namely that the claimants had unreasonably refused any offer of alternative work."

The drafting is a little clotted, which can no doubt be forgiven in the circumstances; but the basic point is clear, namely that if, as Mr Porter was asserting, the claims of the non-returners had been dismissed on the basis of a time point – whether "the section 29 (4) defence" or something else – there was no reasoning in the Reasons to support such a decision.

29. Silber J held (see para. 72 of his judgment) that Mr Porter was right that the Notice of Appeal contained no challenge to the decision in the 2010 proceedings, but he was not prepared to dismiss any such challenge on that basis alone, since whatever the position as a matter of formal pleading Mr Porter had had sufficient notice from Mr Segal's skeleton argument of the points which he wished to argue. However, he held that any challenge to that decision was bound to fail unless Mr Segal was given permission to amend in accordance with his draft; and he refused permission on two bases, as follows:

(1) He said that the Respondent would be prejudiced by the amendment, because if the point had been taken earlier it would have been possible to obtain clarification from the Employment Judge as to what he had meant to decide and why, in accordance with the so-called Burns/Barke procedure (see Barke v Seetec Business Technology Centre Ltd [2005] ICR 1372), whereas that would not now be possible (see para. 75).

(2) He held that in any event the proposed amendment could not succeed (see para. 76); I will set out his detailed reasoning when I come to consider the point below.

30. That left Silber J to decide the originally pleaded issues relating to the 2009 proceedings. So far as the two issues which remain live before us are concerned:

(1) He decided the substantive issue in the Respondent's favour: see paras. 14-39 of his Judgment.

(2) That meant that the amendment issue became, strictly, academic; but he decided nevertheless that the Judge made no error of law in refusing permission to amend: see paras. 40-56.

I will, again, not set out his detailed reasoning at this stage.

THE ISSUES ON THIS APPEAL

31. The upshot of that confused and confusing history is that the issues on this appeal are as follows:

(1) The Substantive Issue – that is, whether the effect of the Agreement was that Fridays were not days on which employees were normally required to work: this arises on any view as regards the claims in the 2009 proceedings, but there is a question whether it arises also in the 2010 proceedings (see (3) below).

If Silber J was right about the substantive issue, that disposes of the claims in both sets of proceedings. But if he was wrong there remain the separate issues as regards the 2009 and 2010 proceedings, namely:

(2) The 2009 Proceedings: the Amendment Issue – that is, whether the Claimants in the 2009 proceedings should have been permitted to amend to claim under section 34 of the 1996 Act instead of under section 23, so as to avoid the impact of the 2002 Act.

(3) The 2010 Proceedings: the broad issue is simply whether the non-returners have a viable claim, but the particular issues depend on the details of Silber J's reasoning, and I will not attempt to summarise them here.

I take those issues in turn.

(1) THE SUBSTANTIVE ISSUE

32. The Claimants' case is straightforward. Until the Agreement came into force Fridays were unquestionably a day on which they were normally required to work. The effect of the Agreement was to remove the requirement to work on Friday for a limited and defined period – initially six months, subsequently extended to twelve – in response to what it was hoped would be a temporary downturn in work. Indeed the provision for cancellation on one week's notice meant that the period of short-term working was precarious and represented a maximum and not a fixed term. An avowedly temporary arrangement of that kind did not prevent Friday remaining "normally" a working day: if at any point during 2009 either party had been asked (innocently of the possible implications of the answer) "do the employees here work on Fridays ?" the natural answer would have been "normally yes; but at present there's a temporary agreement for four-day working". In support of that contention Mr Segal drew attention to two pieces of evidence in particular:

(1) The Agreement provided that, notwithstanding the reduction to a 34-hour week, the trigger for the payment of overtime rates would remain 39 hours: that showed that the parties continued to regard 39 hours (and thus also Friday working) as the norm.

(2) In a letter to employees dated 2 November 2009 setting out the Respondent's position on negotiations with the Union about working hours the responsible manager said:

"We currently have a short time working agreement in place that finishes on 31^st December this year. From January 1^st 2010, if not before, all employees will revert to normal full time working (39 hrs) … [emphasis supplied]."

Mr Segal said that that use of the term "normal" reflected the reality of the situation.

33. The Respondent's case was that the effect of the Agreement was to create, so long as it remained in force, what Mr Porter described as a "new normal". There is some uncertainty as to whether before the ET and the EAT he was, or was understood to be, submitting that that arose merely from the fact that the Claimants' contractual hours had been contractually varied, albeit temporarily. At para. 25 of the Reasons, as part of his exposition of the issues, the Judge said (though it is not entirely clear whether he is purporting to record the Respondent's case or to express his own conclusion):

"Where there has been an effective variation to the contract of employment so as to reduce the days upon which the employee is required to work then it would follow the guarantee payment cannot be claimed for any of the days on which the employee is not contractually required to work."

But there are other passages which suggest that the Respondent's case was only that the effect of this particular variation, having regard to its duration and the particular circumstances of the case, was to create a new norm; and it may be debatable which version of the argument – which I will call the "hard" and the "soft" versions – the Judge was espousing when he upheld the Respondent's case on the substantive issue in para. 91 of the Reasons (see para. 21 above). Mr Porter's skeleton argument before us at least flirted with the hard version of the argument. He described the ET as having found

"… that the formal, legally effective variation of the Appellants' contracts of employment to remove Friday working for an identified and fixed period created, for the duration of that relevant period, a 'new normal' working pattern in which Friday was no longer a day on which the Appellants were normally required to work for the purposes of ERA s 28."

But in his oral submissions he advanced the soft version, accepting that in some circumstances a temporary contractual variation might not change the norm but contending that the variation in the present case did so.

34. I am satisfied that the hard version of the Respondent's argument is wrong in principle. The question which governs liability under section 28 is whether the employee "would normally be required to work [on the day in question] in accordance with his contract of employment". That is not the same as asking whether he is in fact required by his contract of employment to work on that particular day. The phrase "in accordance with his contract of employment" is governed by "normally". Thus the question is whether the employee would normally be contractually required to work on that day. It is "normally" which is the key concept underlying section 28: the contrast which it imports is between the state of affairs as it actually is – where, ex hypothesi, the employee is not being required to work – and the state of affairs as it would be but for the (abnormal) non-provision of work for him to do. For the purpose of that contrast it seems to me immaterial whether the abnormal state of affairs is covered, or accompanied, by an agreement which expressly varies the contract of employment: what matters is that it is abnormal. The fact that the employee, or his representatives, may have expressly agreed to a departure from the norm, in a manner which gives rise to a variation of the contract of employment, does not by itself mean that it is any the less a departure.
35. That conclusion seems to me correct on the basis of the language of section 28 (1) alone, but in so far as there is any room for ambiguity it is reinforced by two further points:

(1) Section 30 (5) of the Act, which I set out at para. 2 (3) above, provides for how a guarantee payment should be calculated in cases where "an employee's contract has been varied, or a new contract has been entered into, in connection with a period of short-time working"; and, as noted at para. 2 (4), section 31 (6) is to the same effect. That necessarily envisages that the right to a guarantee payment may arise where a period of short-time working has been the subject of agreement, and I cannot see how that is compatible with the hard version of the Respondent's case. This point was made by Mr Segal before the Employment Judge (who did not however address it) and before the EAT. In the EAT Silber J apparently accepted Mr Porter's submission that section 30 was irrelevant because it was only concerned with calculation and not with liability (see paras. 30 and 31 of his judgment). But the provisions of Part III must be construed as a whole, and it is not only legitimate but necessary to look at the provisions relating to calculation to the extent that they shed light on the meaning of the provisions as to liability.

(2) It would be surprising and unsatisfactory if the position were that by giving his explicit agreement to a period of short-term working, as opposed to suffering the employer to act unilaterally, an employee lost his or her right to a guarantee payment. That would be inimical to the orderly conduct of industrial relations, which should involve agreement wherever possible, and would put a premium on intransigence.

36. As for the soft version of the Respondent's case – that is, that the effect of the particular terms of the Agreement in this case was to create a "new normal" over the period that it remained in force – I cannot accept this either. The points made by Mr Segal which I have set out at para. 32 above seem to me compelling. This was always intended as a temporary arrangement, initially intended to last a maximum of six months though subsequently extended to twelve, and it was terminable on a week's notice. In those circumstances five-day working seems to me plainly to have remained the norm; the Agreement provided for a temporary departure from that norm rather than a replacement of it.
37. I have not thus far directly addressed the reasoning of the Employment Judge or of Silber J in support of the contrary conclusion. I take them in turn.
38. As for the Employment Judge's reasoning, I have set this out at para. 21 above. With respect, none of the points to which he attached importance seems to me to be relevant to the question whether during the currency of the Agreement it could be said that employees were "normally" required to work Fridays. The fact that there had been a history of requests from the Union for shorter working hours on a permanent basis is immaterial given that the actual Agreement was avowedly temporary. Likewise I cannot see the relevance of the fact that the proposal for short-term working apparently emanated from the Union, as an alternative to making redundancies: what matters is what state of affairs the Agreement created, not why it came about.
39. Turning to the judgment of Silber J, I need not set out the relevant paragraphs in full. A substantial part of them was concerned with the analysis of three industrial tribunal decisions about the predecessors to these provisions: these were not binding on him or us, and I prefer to deal with them separately: see para. 40 below. That apart, his main focus is on what he took to be Mr Segal's essential submission that an agreement could not be effective to change the pattern of working "normally" required under the contract of employment unless it was permanent. His conclusion, at para. 31, is that the essential issue is whether the day in question is one on which the employee would "normally be required to work in accordance with his contract of employment", and not "whether the varied contractual arrangement is permanent or not, which is not a relevant factor". I can agree that it is generally better to avoid paraphrase and that "normal" is not literally synonymous with "permanent". But the fact that an agreement introducing changes is avowedly temporary (being the antonym of "permanent") seems to me, for the reasons which I have already given, highly material to the question whether the state of affairs during its currency can be described as normal; and in the context of the present case I cannot see anything wrong in Mr Segal's focus on that question. Silber J does not in terms adopt the "hard" version of Mr Porter's submissions; but his implicit emphasis on the phrase "in accordance with his contract of employment" certainly tends in that direction. To the extent that he accepted that submission, I think, with respect, that he was wrong, for the reasons given at para. 34 above.
40. As mentioned above, both parties sought to rely before the ET and the EAT, though to a lesser extent before us, on the reasoning in three fairly ancient industrial tribunal decisions – Clemens v Peter Richards Ltd [1977] IRLR 332, Daley v Strathclyde Regional Council [1977] IRLR 414 and Stevenson v Patonpond Ltd (34303/83; unreported). I would not normally think it worthwhile to spend any time on these, since they are of no authority and the issues are only discussed very shortly; but as they are referred to in the textbooks I think I should say a little about them.

• Clemens. This was a case in which the applicant's contract of employment had been unilaterally changed by the employer from four days a week to two because of a downturn in work. She claimed guarantee payments under the provisions of the 1975 Act (which were in materially identical terms). The tribunal dismissed the claim. The reasoning was, in essence, that the change had been accepted by the applicant by conduct and that thereafter her only contractual entitlement was to two days' work. That may have been correct, though the reasoning is so short that I would not wish to express a concluded view; but it is not on all fours with the present case because it was not suggested that the change was temporary.

• Daley. In this case the employer had unilaterally imposed a reduction from five-day to four-day working. The employees had protested but the tribunal held that they had in practice accepted the change and that in those circumstances they could not say that they were "normally" contractually required to work the fifth day. However, it made the point in terms that "the change is not a short term or temporary one". The implicit recognition that the position might have been different if that were so is consistent with my analysis above.

• Stevenson. The employees here entered into a short-time working agreement in order to avoid redundancies at a time of economic difficulty for the employer. There is no finding as to the intended duration of the agreement. The employers' argument was apparently that the fact that the employees had entered into the agreement was itself fatal to a claim for a guarantee payment – i.e. what I have called the "hard" version of Mr Porter's submissions. That argument was rejected by the tribunal. Among other things it relied on the provisions of section 14 (2) of the 1975 Act, which is the equivalent to section 30 (5) of the 1996 Act. This reasoning too is plainly consistent with my own analysis above.

These cases are thus broadly in line with the approach which I would take to these provisions.

41. I would accordingly find in favour of the Claimants on the substantive issue: during the currency of the Agreement Fridays remained days on which they were "normally" contractually required to work, and in so far as work was not provided for them on those days they were workless days within the meaning of Part III in respect of which they were entitled to guarantee payments. That means that it is necessary to go on to consider the particular issues relied on by the Respondent in relation to the two sets of proceedings.

(2) THE 2009 PROCEEDINGS: THE AMENDMENT ISSUE

42. To recap, the question here is whether the Employment Judge erred in law in refusing permission to the Claimants, whose claim under section 23 of the 1996 Act had foundered on the rock of Part 3 of the 2002 Act, to amend so as to advance their claim under section 34 of the Act, to which the 2002 Act did not apply.
43. The Judge's reasons for refusing permission are given at paras. 95-100 of his Reasons, which I have set out at para. 22 above. They are shortly stated, but they should fairly be read with his summary of Mr Porter's submissions at para. 46 of the Reasons, which is a little fuller. They are of two kinds.

(1) At para. 97 the Judge makes three points of a conventional discretionary character – (a) that the effect of the amendment if admitted would be to raise a new cause of action; (b) that fresh proceedings raising that cause of action would have been out of time; and (c) that the application could have been made much sooner. Those three points are evidently intended to address the three sub-heads under head (5) of the well-known guidance of Mummery J in Selkent Bus Co. Ltd. v. Moore [1996] ICR 836, to which the Judge refers: I quote the passage in full at para. 47 below.

(2) At paras. 98-99 he addresses a submission by Mr Porter that "it is not permissible to amend an ET1 which the tribunal has no jurisdiction to accept in the first place": earlier in the Reasons, at para. 46, Mr Porter is said to have referred to this as "the fundamental objection to amendment". If it is a good point it represents an absolute, because jurisdictional, bar to the grant of permission to amend. At para. 98 the Judge only says that this submission has "considerable force"; but I read para. 99, as Silber J evidently did, as going further and accepting it.

44. Silber J in the EAT upheld the decision of the Employment Judge principally on the basis of the second – that is, the jurisdictional – ground. The reasoning at paras. 48-52 of his judgment can be summarised as follows:

(1) The effect of section 32 of the 2002 Act was that the Claimants' failure to comply with the terms of the applicable statutory grievance procedure (or, more precisely, their non-entitlement to be treated by virtue of reg. 9 of the 2004 Regulations as having complied with those requirements) deprived the ET of jurisdiction to hear the claims in the 2009 proceedings as originally pleaded.

(2) Accordingly the original proceedings were a nullity.

(3) It had been held by the National Industrial Relations Court (Sir John Donaldson presiding) in Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 that in a case where the originating application failed to comply with the necessary procedural rules the industrial tribunal had no power to amend in order to change the basis of the claim. Cocking was said to have been approved by this Court in British Printing Corporation (North) Ltd v Kelly [1989] IRLR 222.

(4) He held that in consequence the Judge "was correct to hold that he had no power to grant the application to amend".

45. Silber J also held, at paras. 53-56 of his judgment, that if, contrary to his conclusion as set out above, the Judge had power to grant the application his reasons for refusing it fell within the ambit of his judicial discretion. He had correctly directed himself by reference to Selkent and his decision could not be said to have been perverse.
46. I am afraid that I do not agree with the Employment Judge or Silber J on either point. It is convenient to take the conventional discretionary grounds first. I have summarised at para. 43 (1) above the three reasons given by the Judge for refusing permission to amend as a matter of discretion. I take them in turn.
47. As to point (a), it is in my view very doubtful whether an amendment to base the claim on section 34 of the 1996 Act rather than section 23 is properly to be described as raising a new cause of action. On either basis the claim is a claim to enforce the right to a guarantee payment created by section 28. The conditions of liability are identical, and the only difference is in the statutory gateway chosen. But ultimately it does not matter. There is nothing in the Rules or the case-law to say that an amendment to substitute a new cause of action is impermissible. The Judge evidently had in mind the language of Mummery J in the relevant part of the guidance in Selkent which he was seeking to follow. The passage reads:

"(4) Whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

(5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:

(a)  The nature of the amendment. Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

(b)  The applicability of time limits. If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions eg, in the case of unfair dismissal, S.67 of the 1978 Act.

(c)  The timing and manner of the application. An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.

If the final sentence of point (5) (a) is taken in isolation it could be understood as an indication that the fact that a pleading introduces "a new cause of action" would of itself weigh heavily against amendment. However it is clear from the passage as a whole that Mummery J was not advocating so formalistic an approach. He refers to "the … substitution of other labels for facts already pleaded" as an example of the kind of case where (other things being equal) amendment should readily be permitted – the contrast being with "the making of entirely new factual allegations which change the basis of the existing claim". (It is perhaps worth emphasising that head (5) of Mummery J's guidance in Selkent was not intended as prescribing some kind of a tick-box exercise. As he makes clear, it is simply a discussion of the kinds of factors which are likely to be relevant in striking the balance which he identifies under head (4).)

48. Consistently with that way of putting it, the approach of both the EAT and this Court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted. It is thus well recognised that in cases where the effect of a proposed amendment is simply to put a different legal label on facts which are already pleaded permission will normally be granted: see the discussion in Harvey on Industrial Relations and Employment Law para. 312.01-03. We were referred by way of example to my decision in Transport and General Workers Union v Safeway Stores Ltd (UKEAT/0092/07), in which the claimants were permitted to add a claim by a trade union for breach of the collective consultation obligations under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 to what had been pleaded only as a claim for unfair dismissal by individual employees. (That case in fact probably went beyond "mere re-labelling" – as do others which are indeed more authoritative examples, such as British Printing Corporation (North) Ltd v Kelly (above), where this Court permitted an amendment to substitute a claim for unfair dismissal for a claim initially pleaded as a claim for redundancy payments.^[5])
49. It is hard to conceive a purer example of "mere re-labelling" than the present case. Not only the facts but the legal basis of the claim are identical as between the original pleading and the amendment: the only difference is, as I have already said, the use of the section 34 gateway rather than that under section 23. In my view this factor should have weighed very heavily in favour of permission to amend being granted. As the present case only too clearly illustrates, some areas of employment law can, however regrettably, involve real complication, both procedural and substantial; and even the most wary can on occasion stumble into a legal bear-trap. Where an amendment would enable a party to get out of the trap and enable the real issues between the parties to be determined, I would expect permission only to be refused for weighty reasons – most obviously that the amendment would for some particular reason cause unfair prejudice to the other party.^[6] There is no question of that in the present case.
50. As to point (b), it is true that fresh proceedings under section 34 of the 1996 Act would have been out of time. Mummery J says in his guidance in Selkent that the fact that a fresh claim would have been out of time (as will generally be the case, given the short time limits applicable in employment tribunal proceedings) is a relevant factor in considering the exercise of the discretion whether to amend.^[7] That is no doubt right in principle. But its relevance depends on the circumstances. Where the new claim is wholly different from the claim originally pleaded the claimant should not, absent perhaps some very special circumstances, be permitted to circumvent the statutory time-limits by introducing it by way of amendment. But where it is closely connected with the claim originally pleaded – and a fortiori in a re-labelling case – justice does not require the same approach: NB that in High Court proceedings amendments to introduce "new claims" out of time are permissible where "the new cause of action arises out of the same facts or substantially the same facts as are already in issue" (Limitation Act 1980, section 35 (5)). In the circumstances of the present case the fact that the claim under section 34 would have been out of time if brought in fresh proceedings seems to me to be a factor of no real weight. There is, as I have already said, no question of any specific prejudice to the Respondent from the claim being reformulated after the expiry of the time limit.
51. As to point (c), the Judge says that the application to amend "could have been addressed with much greater expedition". I have to say that I do not regard that conclusion (which is not amplified anywhere earlier in the Reasons) as open to him on the facts. As appears from paras. 16-17 above, the amendment only became necessary at all as the result of the Respondent's very belated application to amend to take the point under the 2002 Act. That application was first made at the very end of June 2010. The Claimants' application in response was adumbrated in Mr Segal's skeleton argument served in October 2010. It was dealt with at the next hearing, though as it turned out that was not until June 2011. That timetable seems to me unexceptionable. In any event the Respondent at no point suggested – nor could it realistically have done – that it had suffered any prejudice as a result of the interval of two or three months between the service of Mr Porter's skeleton taking the 2002 Act point and the service of Mr Segal's skeleton intimating an intention to seek permission to amend in response.
52. In summary, I cannot, with respect, agree with Silber J that the refusal of the Claimants' application for permission to amend was within the scope of the Employment Judge's discretion. The Respondent had been granted permission to amend, very late, to take a thoroughly technical point on the provisions of the 2002 Act. In my view justice required that the Claimants be permitted to amend to plead the best available answer to that point. No new issues of fact were involved and the grant of the application involved no prejudice to the Respondent – beyond the obvious but immaterial prejudice that amendment would deprive it of what might otherwise be an answer to the claim.
53. I turn to the jurisdiction point. Since the point, if it is good, is one of pure law rather than discretion I am principally concerned not with the reasoning of the Employment Judge but with that of Silber J, as summarised at para. 44 above.
54. I have no problem with Silber J's starting-point, namely that the effect of section 32 of the 2002 Act is to deprive the employment tribunal, in a case to which it applied, of "jurisdiction". But I do not agree that the fact that a claimant has commenced proceedings in respect of a claim which the tribunal decides in due course that it has no jurisdiction to determine^[8] is an absolute bar to an amendment which would remove that difficulty. Silber J's view to the contrary seems to depend on his characterisation of the claim as a "nullity". I can see the force of the argument that if the claim were indeed a nullity in the full sense of that term, i.e. ab initio, there would be no proceedings in being that could be the subject of an amendment. But that is not the case here. It is necessary to understand how section 32 worked. As appears from section 32 (6), the tribunal was only prevented from considering a complaint if either (a) the claimant's non-compliance was apparent on the face of the ET1^[9] or (b) it decided that there had been non-compliance with section 32 (2) in response to the respondent raising that issue "in accordance with … employment tribunal procedure regulations" (which in practice means by an amendment under the Rules^[10]). In the present case head (a) did not apply: the Claimants said nothing in their ET1 to indicate non-compliance, because they (like the Respondent) believed that a valid collective grievance had been lodged. As for head (b), it was only at the hearing itself that the Employment Judge gave permission to amend and was "satisfied of the breach" asserted by the Respondent. Until that moment the Tribunal had full jurisdiction and the proceedings were entirely valid. There is thus no question of nullity.
55. I do not believe that the judgment of the NIRC in Cocking has any application to this issue. The particular question in that case, which concerned proceedings being wrongly brought against a subsidiary instead of the parent company, was quite different; but Sir John Donaldson took the opportunity at the end of his judgment (pp. 656-7) to give some general guidance as to the approach to be taken where "a tribunal is asked to amend a complaint by changing the basis of the claim or by adding or substituting respondents". He did so in seven numbered points. The first two, which are those on which Silber J relied, read as follows:

"(1) They should ask themselves whether the unamended originating application complied with rule 1 of the Schedule to the Regulations of 1972 … . (2) If it did not, there is no power to amend and a new originating application must be presented."

The Schedule referred to contained the then industrial tribunal rules of procedure. Rule 1 set out certain basic minimum information which an application to the tribunal had to give. All that Sir John was thus saying was that if the original application was fundamentally defective as regards the formal requirements any new claim sought to be raised by amendment would be equally so. That is not the present case.

56. Mr Segal also relied on the decision of this Court in Capek v Lincolnshire County Council [2000] IRLR 590. In that case the claimant had brought claims in the employment tribunal for arrears of salary purportedly under the "breach of contract" jurisdiction conferred by the Employment Tribunals (Extension of Jurisdiction) Order 1994. The tribunal had held, correctly, that the Order did not apply because it confers jurisdiction only in cases where the claimant's employment has terminated, which was not the case; but it was held that the case should nevertheless be remitted for consideration of whether the claims could proceed as claims for unlawful deductions under Part II of the 1996 Act notwithstanding that the claimant had never formulated them in that way. The case was not in fact explicitly treated as one where permission to amend was required, but no doubt an amendment would have been formally appropriate. Mr Segal submitted that if the Respondent's jurisdiction point were correct the tribunal would have had no jurisdiction to amend, since it had had no jurisdiction to entertain the original claim. At para. 49 of his judgment (p. 594) Mummery LJ recorded, and apparently endorsed, the claimant's submission that

"… [a] failure to attach the correct label or all the correct labels to the facts relied on in the originating application does not deprive the employment tribunal of jurisdiction which it may have to determine a complaint."

The decision is clearly helpful to Mr Segal; but the specific point relied on by the Respondent in the present case does not appear to have been argued and I prefer to decide the issue as one of principle rather than to treat Capek as binding authority.

57. I would accordingly allow the appeal as regards the amendment issue and permit the Claimants to reformulate their claim under section 34 of the 1996 Act. In the light of my conclusion on the substantive issue, that would mean – if My Lords agree – that the claims in the 2009 proceedings succeed, save only that any claim arising more than three months before the commencement of the proceedings is time-barred. I would formally remit the case to the ET to quantify the amounts due; but I would expect the quantification to be a matter of arithmetic and capable of agreement (subject to any dispute that may for idiosyncratic reasons arise in a particular case) and I would hope that a further hearing would not be necessary.

(3) THE 2010 PROCEEDINGS

58. We are only concerned with the claims of the non-returners – that is, those Claimants who continued with four-day working after 13 November 2009. There is, as I have sought to demonstrate, an apparent confusion about whether the Employment Judge dismissed those claims because of his conclusion on the substantive issue or because he regarded them as out of time. Silber J thought that this confusion could only be resolved by asking the Judge to give further details of his reasoning: see para. 29 (1) above. I am not sure that I agree: I would have thought that it was right to prefer his actual explanation in the Reasons to the literal terms of the Judgment, which should be treated as a slip. But ultimately it does not matter, because neither version of his possible reasoning is sustainable. So far as the substantive issue is concerned, I have expressed my conclusion above. As for the claims being out of time, they patently are not: the most recent arose within the three months preceding the presentation of the claim, and those prior to that date would, as Mr Porter had conceded, have the advantage of the "series of deductions" provision in section 23 (3) (a).
59. Silber J, however, held that the claim was bound to fail for a wholly different reason, namely that in the light of the September invitation the non-returners could not say that they had not been "provided with" work after October 1 within the meaning of section 28 (1) of the 1996 Act; although this point fitted into his reasoning as an alternative reason for refusing Mr Segal the amendment which he sought, if it is good it would be a substantive answer to the non-returners' claims.
60. Silber J's approach was based squarely on a finding made by the Employment Judge at para. 89 of the Reasons. At para. 73 (b) of his judgment he set out the final two sentences, but I think I should quote the paragraph in full. It reads:

"In September 2009 [the responsible manager] met with the GMB's employee representatives to discuss employees returning to work 39 hours a week for November and the first week of December 2009. The Union's view was that such would amount to the termination of the agreement; and the respondent could not later introduce it.^[11] The respondent's evidence is that in September production management invited any employees who wanted to return to working 39 hours per week to return to work on Fridays from 1 October. I accept that the respondent took steps to recruit as many returnees as it could by making the offer generally known, by keeping the union apprised of the respondent's need for manpower and by personal approaches to employees on the shop floor. I find that all employees could have so returned [to work] between 1 October and 31 December, since there was enough work for all. Many employees accepted the offer but others declined. The respondent despite their efforts were unable to recruit enough volunteers."

Referring to those findings, Silber J said, at para. 76 of his judgment:

"the Employment Judge found that there was no period after 1 October 2009 when the Claimants were, in the words of section 28(1) ERA, 'not provided with work'. … The true position is that the Claimants had been offered their old work times and at the old wages. The stark fact is that the Claimants could not qualify for payments under section 28 (1) ERA."

He made it clear that he did not regard this point as having anything to do with section 29 (4) of the Act, because that was concerned with the offer of "alternative work": what, on the Judge's finding, the Respondent had done was to offer the Claimants the very work that they had been doing prior to the Agreement.

61. Mr Segal's primary submission was that it was not open to Silber J to decide the non-returners' claims on this basis. It had not been part of the Respondent's case before the ET that the effect of the September invitation was that the Claimants had been "provided with" work within the meaning of section 28 (1). Although the invitation had indeed been relied on, that was only as part of its case based on section 29 (4) – see para. 13 above. Since section 29 (4) works by providing a defence to what would otherwise be a good claim under section 28, it was an inevitable corollary of that case that it was accepted that the Claimants had not been provided with the work that they would normally be contractually required to do. Likewise, the Employment Judge had not decided the case on the basis that the Claimants had been provided with work: although he had indeed made the findings in para. 89 of the Reasons on which Silber J relied, they were not referred to in his dispositive reasoning and did not form any part of it. Nor, importantly, had the Respondent tried to put the case that way in the EAT – and if it had it would have come up against the peculiarly strict rules which are applied about the taking of new points on appeals from the ET (see, most recently, Leicestershire County Council v UNISON [2006] IRLR 810). This way of putting the case had emerged for the first time in the judgment of Silber J: it had not been canvassed at all in the course of oral submissions.
62. Mr Segal further submitted that in any event Silber J's reasoning was wrong. The September invitation did not constitute the provision of work to the Claimants within the meaning of section 28 (1). The effect of the Agreement was that for as long as it remained in force work was not provided on Fridays. That situation was not changed by the Respondent, as described in para. 89 of the Reasons, making an "offer", or extending an "invitation", to "volunteers" outside the terms of the Agreement. It could only be changed by it exercising its option to cancel the Agreement on a week's notice. The Respondent had not taken that course. Mr Segal submitted that it seemed from the findings at the beginning of para. 89 that that was a deliberate choice on the Respondent's part, in order to maintain some flexibility: as there recorded, the Union had made the point that cancellation of the Agreement would reintroduce five-day working for the whole of the rest of the year, whereas the Respondent's proposal had been for a return to five-day working only for "November and the first week in December". Mr Segal submitted that in those circumstances the finding at the end of the paragraph that "all employees could have … returned between 1 October and 31 December" could not be equated with a definitive offer of return by the Respondent to every employee for the entirety of the relevant period.
63. Mr Porter supported Silber J's reasoning based on section 28 (1), which he said was fully justified by the findings at para. 89 of the Reasons. He did not seek to revive the originally pleaded point based on section 29 (4) (nor indeed was it raised in the Respondent's Answer). He acknowledged in his oral submissions that his own case on the September invitation had always been based squarely on section 29 (4), and also that no argument based on section 28 (1) had been raised in the course of the hearing in the EAT. But he said that Silber J's way of putting it was "essentially the same thing, by a very slightly different route"; it relied on the same factual findings, and it could not really be regarded as a new point.
64. I can understand why Silber J was unattracted by an outcome under which the non-returners could recover guarantee payments in circumstances where it appeared that they had had the chance to return to five-day working. However I have come to the conclusion, not without some hesitation, that Mr Segal is right that the argument on which he relied was not open to him on the basis of the way that the case had been argued, both in the ET and in the EAT. The reasoning based on section 28 (1) was plainly legally distinct from the section 29 (4) case being run by the Respondent, and the Claimants should have been given the opportunity to deal with it. That omission might not be fatal if it were clear beyond argument that the Employment Judge's findings at para. 89 of the Reasons did necessarily mean that each of the Claimants had been "provided with" work for the entire period from the beginning of October to the end of the year. But I do not think that that is the case. In the first place, it does seem to me at least arguable that where the contract of employment had been, albeit temporarily, altered so as to provide for four-day working the Respondent could only provide the Claimants with work on Fridays, within the meaning of section 28 (1), by terminating the Agreement in accordance with its terms. But even if that is too formalistic an approach (as it may be), in circumstances where an agreement for four-day working had been formally made and had (apparently deliberately) not been terminated I do not think that the Claimants could be said to have been "provided with" five-day working for the remainder of its term unless a sufficiently formal and unequivocal offer to that effect had been made to each of them. I do not believe that the findings in para. 89 of the Reasons can safely be read as going that far. The course taken by the Respondent of, as the Judge put it, "making the offer generally known" and "personal approaches" smacks of a more informal and flexible approach. I accept that the final sentences of the paragraph might nevertheless be read as an implicit finding of an unequivocal and universal offer; but that is not what they actually say, and the Claimants must have the benefit of any doubt. That is not simply because they were not given the opportunity to address the issue in the EAT but also because the Employment Judge himself when making the findings relied on was not focusing on this issue, since the "provision of work" point had not been taken at all^[12]. In these circumstances I do not think that it would be fair to allow the claims of the non-returners to be determined on the basis of a new point.
65. My formal conclusion is thus that I respectfully disagree with both Silber J's reasons for refusing the Claimants permission to amend their Notice of Appeal. But the fact that the issue comes up in that particular guise reflects the unhappy pleading and procedural history outlined above, and the real question is the substantive one of whether the ET should have found in favour of the non-returners. As to that, I can summarise my conclusions as follows:

(1) Their claims in respect of workless days after 6 November 2009 are self-evidently in time; and they can in principle take advantage of the "series of deductions" provision to claim also in relation to earlier workless days (subject to the point noted at para. 66 below).

(2) My conclusion above on the substantive issue means that those claims are well-founded, subject only to the effect of the September invitation.

(3) As regards the September invitation, it may be that if the point had been taken before the ET that that invitation constituted the "provision" to every Claimant of work within the meaning of section 28 (1) the Respondent might have had a defence – though a careful analysis of exactly what was communicated, when and to whom would have been required. But it was not taken, and I do not believe that it was open to Silber J to rely on it in the EAT. As I have said, Mr Porter did not seek before us to maintain his original reliance on section 29 (4) and I need not express a definitive view about it, but I am inclined to think that Silber J was right to reject it, for the reason which he gave: see para. 60 above. So the September invitation affords the Respondent no defence.

66. In my view, therefore, the appeals of the non-returners must be allowed and their claims remitted to the ET for quantification of the sums due and the resolution of any issues peculiar to particular Claimants. Again, I would expect the exercise in most cases at least to be purely arithmetical and capable of agreement, but there is one particular wrinkle which I should record. Mr Segal was asked in the course of the argument before us whether the consequence of his submissions was that the non-returners could pursue their claims back into the period which was originally intended to be covered by the 2009 proceedings. That would be significant because, even on the basis that the Claimants' appeal in those proceedings is allowed, it is accepted that their claims can extend back only to mid-March 2009, whereas the series of deductions relied on in the 2010 proceedings would on the face of it go back to the start of short-time working in January. Mr Segal said that that was indeed his case but that since the point had not been considered by the Employment Judge he did not feel able to ask us to make a positive ruling to that effect and that it would have to be remitted. I would not seek to go behind that concession. It may help to concentrate minds if I say that as at present advised I can see no answer to Mr Segal's case on this point; but the question was not developed before us at all, and if there is in fact an arguable answer to it the Respondent is free to advance it.

DISPOSAL

67. I would allow the appeal in relation to all Claimants in the 2009 proceedings and the non-returners in the 2010 proceedings and remit both cases to the ET for quantification on the basis indicated above. The complications of procedure and analysis in which this case became entangled make depressing reading; but to some extent (though not wholly) they reflect the impact of the 2002 Act, with which fortunately tribunals no longer have to contend

Lord Justice Kitchin :

68. I agree.

The Chancellor of the High Court :

69. I also agree,

Note 1    There is an unresolved question as to whether the correct number is 332 or 328, but that is immaterial for present purposes.    [Back]

Note 2    Stringer was concerned with holiday pay under the Working Time Regulations, but the essential point is the same.    [Back]

Note 3    Although this point is not bottomed out in the pleading, the crucial question is not in fact whether they returned to five-day working immediately following the September invitation but whether they did so before the beginning of the three-month limitation period running back from the commencement of the 2010 proceedings on 15 February 2010. That period runs back to 16 November 2009. But the Judge proceeded on the basis that, because wages were paid weekly in arrears, the last workless day in respect of which an employee could potentially claim was the preceding Friday, being 13 November – see para. 104 of the Reasons (which I set out below); and no point has been taken about the correctness of that approach. The Respondent told the ET that 198 of the Claimants had returned to five-day working before the critical date. Mr Segal told us that that figure had not been formally verified by those instructing him but that he had no reason to believe that it was wrong. On that basis the non-returners number 130 or 134 (cf. n. 1 above).     [Back]

Note 4    They are described simply as “198 claimants”, but that is clearly who is being referred to: see n. 3.     [Back]

Note 5    For a more recent example in this Court see New Star Asset Management Holdings Limited v Evershed [2010] EWCA Civ 870.     [Back]

Note 6    In a passage in Smith v Cropper (1885) 26 Ch D 700 which was once much cited in interlocutory proceedings in the High Court Bowen LJ said (at p. 711): “[I]t is a well-established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. … I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.” The qualifications about avoiding “injustice to the other party” and cases of “intention to overreach” (that is, abuse of procedures or pursuit of tactical advantage) are of course important, and one would nowadays add a reference to the importance of proper case management. Nevertheless Bowen LJ’s observations are a salutary warning against too schoolmasterly an approach.    [Back]

Note 7    Mr Porter expressly disavowed any argument that the fact that a fresh claim would have been out of time was not just a relevant consideration but an absolute bar to the grant of permission to amend: see Safeway Stores (which at para. 10 deals explicitly with this aspect of the Selkent guidance).     [Back]

Note 8    It is worth noting that this might arise in other circumstances apart from the 2002 Act: an obvious example is time points, which in the employment tribunal have traditionally been regarded as “going to jurisdiction”.     [Back]

Note 9    The standard form contained questions designed to elicit whether the statutory grievance procedure had in fact been complied with.     [Back]

Note 10    This may be a slight oversimplification – see Glasgow City Council v Stefan Cross Claimants UKEATS/0007/09 – but it will do for present purposes.      [Back]

Note 11    This is a little obscure, but I think the meaning must be that the Union’s position was that if the Agreement was to be terminated it must be for good, so that there could not be – as was apparently envisaged – a return to four-day working for the last three weeks of December.    [Back]

Note 12    The Respondent had of course taken a point on section 29 (4), but that is not the same issue. And it is not clear whether the Employment Judge was in para. 89 seeking to address that issue either: as I have said, it formed no part of his dispositive reasoning.     [Back]