Abercrombie & v AGA Rangemaster Ltd (Jurisdictional Points : Extension of time: reasonably practicable) [2012] UKEAT 0099_12_1010
EAT
Abercrombie & v AGA Rangemaster Ltd (Jurisdictional Points : Extension of time: reasonably practicable)
[2012] UKEAT 0099_12_1010 · 2012-10-10
[11]b) D onaldson LJ who said in Union of Construction, Allied Trades and Technicians v Brain [1982] IRLR 22 that ” I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought upon any such analysis. This, to my mind, is to misuse the purpose for which reasons are given. ”; c) Keene J who said in Derby Specialist Fabrication Ltd v Burton [2001] ICR 833 , 844D that “As we have already said, it must be borne in mind that the extended reasons of an Employment Tribunal are directed towards parties who know in detail the arguments and the issues in the case . The tribunal’s reasons do not need to be spelt out in the detail where they to be directed towards a stranger to this dispute”; and by d) Elias J, who stated in ASLEF v Brady [2006] IRLR 576 , that “57 The EAT must respect the factual findings of the Employment Tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not ‘use a fine toothcomb’ to subject the reasons of the Employment Tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the Tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the Tribunal has essentially properly directed itself on the relevant law.” 33. In any event on this issue, the reasoning of the Employment Judge was adequate on this issue as in paragraph 31, he had referred to section 21 and set it out in full, while his conclusion is consistent with rejecting Mr Segal’s point based on sections 30 and 31 because of its clear finding in paragraph 91 of its reasons (which I have set out in paragraph 16(e) above) that the Claimants following the variation of their contract no longer “normally” worked on Fridays. Thus there were “no normal working hours” within the meaning of section 30(1) on that day and so pursuant to that provision no guarantee payment was payable. To allow the appeal because the Employment Judge did not make specific reference to sections 30 and 31 would be inconsistent with the approaches advocated in the last paragraph and in particular the comments of Keene J and Elias J. 34. I should add that even if, which is not the case, the Employment Judge had failed to consider Mr Segal’s section 30 and 31 points, I would still have not remitted this issue, because I regard it as having no merit for the reasons which I have sought to set out. So it would not be appropriate to remit this issue in the light of the statement of Sir John Donaldson MR in Dobie v Burns International Security Services (UK) Ltd [1985] 1 WLR 43 [18] when he said that a case should not be remitted to an Employment Tribunal where the decision arrived at is “plainly and unarguably right”, which I consider to be the position on this issue. (iv) The facts 35. The proper approach to section 28 was explained by Phillips J giving the judgment of this Appeal Tribunal in Friend v PMA Holdings [1976] ICR 330 at 332 when he stated that the issue on whether there had been a change in “ normal working hours” was:- “…did the agreement prescribing different hours for each of the employees, which was conceded to be an agreement making provisions for normal working hours continue in existence, or was it supplanted and replaced by some new agreement along the lines of the arrangements which I have just read.” 36. On the facts of that particular case, the view of this Appeal Tribunal was that there had been no express agreement between the employers and the employees. The facts of the present case are totally different because the Claimants conceded in their “Originating Application” that the cessation of work on Fridays took effect with the contracts of employment being varied. Paragraph 9.4 of the ET1 in the 2009 claim stated (with my emphasis added) that “it is significant that this agreement took effect as a ‘temporary’ variation to those employees’ permanent employment contract terms and conditions. The purpose of the variation was to avoid compulsory redundancies…” Paragraph 9.6 of the ET1 stated that “…the collective temporary variation of the employees’ hours of work which in effect reduced the working week” . 37. In addition and perhaps more importantly, the Modification Document expressly stated that the variation was for a fixed period which could be determined by notice by the employer and it provided that:- “1. For the 6 month periods between 1 st January 2009 and 26 th June 2009 the working hours for all hourly paid employees will be reduced to 34 hours per week… 5. The working week… will be compressed into 4 days, Monday to Thursday…” 38. These facts and the history of the negotiations followed by a secret ballot show that there was a variation in the contractual arrangements relating to the part of the day during “ which an employee would normally be required to work in accordance with his contract of employment”. Indeed if any claimant employee had been asked for his normal working hours between 1 January 2009 and 29 June 2009, his or her answer would undoubtedly and inevitably have been that he or she had to work 34 hours with no requirement to work on Fridays. In this case, the Employment Judge was entitled to reach the decision which it did and it certainly was neither an error of law or perverse. 39. Set against that background, there can be no criticism of the Employment Tribunal’s conclusion that there was an effective variation in the contracts of employment, which means that there were no days or parts of days on which any of the Claimants was not provided with work but on which he, in the words of section 28(1) ERA, “ would normally be required to work in accordance with his contract of employment” . So this ground of appeal fails. Issue B: The Amendment Issue 40. This issue arose because, as I have explained, the 2009 claims were presented as unlawful deduction claims and they were at the time relevant to those claims subject to a statutory grievance procedure. The Claimants considered that they had complied with it, as it was believed that they had submitted the March 2009 grievance in purported compliance with the relevant statutory grievance procedure. In their Notice of Appearance to the 2009 claim, the Respondents did not contend otherwise and indeed did not then challenge the validity of the March 2009 grievance. 41. Subsequently, by a letter of 29 June 2010, the Respondent amended its Notice of Appearance in order to rely on the decision of the Scottish Employment Appeal Tribunal in Highland Council v TGWU and UNISON [2008] IRLR 858 so as to contend that the Employment Tribunal had no jurisdiction to consider the 2009 claim, because the March 2009 grievance did not name any of the employees to whom it related. Therefore it did not comply with regulation 9(1) (b) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (“The 2004 regulations”) and the claim could not proceed. This amendment was acceded to by agreement. 42. The Claimants then sought to overcome the Respondent’s ground of resistance by amending its claim so as to substitute claims under section 34 ERA 1996 for the alleged failure to make guarantee payment in respect of the period between 1 January 2009 and 31 December 2009. 43. Section 34 ERA 1996 provides that:- “(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. (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.” 44. The basis on which the Claimants sought leave to amend the 2009 claim at the hearing so as to bring those claims was that the new claims were merely adding a new legal label to facts already pleaded, and additionally that such new claims did not require compliance with the statutory grievance procedure. The Respondent opposed this application relying on the principles set out in Selkent Bus Company v Moore [1996] ICR 836 . 45. The Employment Judge refused to grant the Claimants’ application for permission to amend on the grounds that first it was not permissible to amend an ET1 for which the Employment Tribunal had no jurisdiction to accept it initially in its unamended form; second, that the section 34 claim was a new cause of action; third, that the new claim is out of time; and fourth, that the application to amend should have been pursued with greater expedition. 46. Mr Segal challenges that decision on the basis that the Employment Judge was wrong as a matter of law not to permit the application for this amendment. He submits first that the section 34 claim was not a new basis of claim, but that instead that it was the same claim brought under a different label, second that different time limits did not apply, and third that the Respondent would not have been prejudiced by the amendment if it had been permitted. 47. The case for the Respondent is that the Employment Judge was right to refuse the amendment because the original claim did not comply with the rules with the consequence that the Employment Judge had no jurisdiction to deal with it or to amend it, and that the section 34 ERA claim should be the subject of a fresh claim because the original claim was a nullity. 48. In my view, it is necessary to analyse the status of the 2009 claim before the application was made for the proposed amendment by the Claimants and it is common ground, or at least not disputed, that:- a) The Statutory Grievance Procedure under the Employment Act 2002 (“EA 2002”) applied to the first claim for unlawful deductions from wages pursuant to Schedule 4 to the EA 2002 but that was repealed by the Employment Act 2008 (“ EA 2008”); b) By the Article 3 Part 1 of transitional provisions in the Employment Act 2008 (Commencement No 1, Transitional Provisions and Savings) Order 2008 (SI/2008/3232) (“the Transitional Order”), where a claim is presented before 4 July 2009 and the action which forms the basis of a grievance begins before 5 April 2009 and continues beyond that date, the repeal in the EA 2008 of sections 29-33 of the EA 2002 does not apply. In that situation, the Statutory Grievance Procedure continues to be applicable in relation to the claims for deductions of wages and section 23 of the ERA being a jurisdiction listed in Part 2 of the Schedule to the Transitional Order; c) The March 2009 grievance relied upon in the ET1 of the 2009 claim related to the refusal to pay guarantee payments from the introduction of the Modifications Agreement which was implemented on 1 January 2009, but it did not name any of the employees to whom it related and as such does not comply with Regulation 9(1) (b) of the 2004 regulations; d) In consequence, there was a failure to comply with Regulation 9(1) (b) which required the claimant to have in the grievance “specified in writing to the employer (whether in setting out the grievance or otherwise) the names of at least two employees, of whom one is the employee having the grievance, as being the employees on behalf of whom he is raising the grievance”; e) This failure to comply with Regulation 9(1) (b) was conceded by the claimants and there is clear EAT authority that failure to comply with the “name requirements” means that the Statutory Grievance Procedure is not complied with ( The Highland Council v TGWU & Unison & ors ( No 2 ) (supra)); f) It follows that in the absence of compliance with the Statutory Grievance Procedure , the Employment Tribunal had no jurisdiction (and indeed no discretion: Canary Wharf v Debit [2006] IRLR 416 at paragraph 31 ) to hear any claim that is dependent upon compliance with the Statutory Grievance Procedure . By the amended ET3 and letter of the same date, the Respondent had raised the issue of non compliance with the Statutory Grievance Procedure for the purposes of EA 2002 s 32(6) (b); and g) Accordingly, the Employment Judge correctly concluded that the Employment Tribunal had no jurisdiction to hear the claims in the first claim. 49. It now becomes necessary to see if against this background, the Employment Judge was correct to refuse to allow the Claimants to pursue the section 34 point and the starting point has to be EA 2002 s ection 32(2) which provides (with emphasis added) that:- “(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 para. 6 or 9 of Schedule 2 applies, and (b) the requirement has not been complied with .” 50. Under section 32 (7) of the EA 2002, the Secretary of State is empowered to make regulations about these procedures and more specifically about what constitutes compliance with paragraphs 4 and 6 of Schedule 2 . The 2004 regulations were duly made under them and as I have explained these were not complied with by the Claimants with the consequence that, as was explained by Elias P in London Borough of Hounslow v Miller Appeal No. UKEAT/0645/06 when he stated that:- “24 In my view, once the issue of procedural compliance has arisen in a way envisaged by s.32 (6), then the Tribunal simply has no jurisdiction to hear a claim unless it is presented after compliance with the procedural steps. It may be unduly formalistic to require a fresh presentation of another claim, but it seems to me that that is what Parliament has required.” 51. I respectfully agree with that conclusion which means that the original claim was a nullity and that the application for amendment had to be refused, because, as was explained by Sir John Donaldson P in Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 at 656G-657A:- “In every case in which a tribunal is asked to amend a complaint by changing the basis of the claim or by adding or substituting respondents they should proceed as follows. (1) They should ask themselves whether the unamended originating application complied with rule 1 of the Schedule to the Regulations of 1972: see, in relation to home-made forms of complaint, Smith v. Automobile Proprietary Ltd [1973] ICR 306. (2) If it did not, there is no power to amend and a new originating application must be presented. …” 52. The principles set out in Cocking have been approved by the Court of Appeal in British Newspaper Printing Corporation (North) Ltd v Kelly [1989] IRLR 222. Underhill P in Transport and General Workers Union v Safeway Stores Ltd EAT 0092/07 said at paras 8 and 9:
“ the Court [of Appeal in Kelly ]clearly endorsed Cocking … as showing the right approach in such a case”
. In consequence, the Employment Judge was correct to hold that he had no power to grant the application to amend. 53. In any event even if the Employment Judge had power to grant the amendment, he was entitled to refuse it for the reasons which he gave namely that this application was out of time and could have been earlier. These are factors which could properly be taken into account by the Employment Judge and it is clear that the question of amendment is a case management decision for the ET to be determined by the application of a judicial discretion ( Selkent Bus Co Ltd v Moore (Supra) [19]). 54. Accordingly, on an appeal, the test to be applied in considering whether this Appeal Tribunal should interfere with such a decision was expressed by Henry LJ, with whom Beldam LJ and Thorpe LJ agreed, in Noorani v Merseyside Tec Ltd [1989] IRLR 184, [32], who said that:- “I am satisfied, contrary to what the Employment Appeal Tribunal found, the ET were here exercising the classic discretion of the trial judge in the issue of witness summonses and in like matters. Such examples of such a discretion lie not only in the issue of witness summonses but whether to grant an adjournment or whether to order the trial of a preliminary issue etc. These decisions are entrusted to the discretion of the court at first instance. Appellate courts must recognise that in such decisions different courts may disagree without either being wrong, far less having made a mistake in law. Such decisions are, essentially, challengeable only on what loosely may be called Wednesbury grounds, when the court at first instance exercised the discretion under a mistake of law, or disregard of principle, or under a misapprehension as to the facts, where they took into account irrelevant matters or failed to take into account relevant matters, or where the conclusion reached was "outside the generous ambit within which a reasonable disagreement is possible", see G v. G [1985] 1 WLR at 647.” 55. The Employment Judge applied the principles in Selkent on this issue and he was entitled in the exercise of that discretion to take into account the delay in making the application (see Selkent [24]) and the ET found that the application could have been made with greater expedition and to take into account issue of time limits. I agree with Mr Porter that the decision of the Employment Judge to refuse the amendment was a permissible exercise of judicial discretion and was not perverse on Wednesbury grounds nor on the test of perversity, which was famously explained in Yeboah v Crofton [2002] IRLR 634 [93] in this way:- “Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached.” 56. It follows that the Employment Judge did not make an error of law in refusing to accede to the application to include the section 34 claims. Issue C: The Separate Actions Issue 57. This issue arises because as I have already explained when the statutory grievance procedure was repealed by the EA2008 with effect from 6 April 2009, the Transitional Order was introduced so as to deal with various outstanding matters. Under paragraph 3(2) of Part 1 of the Schedule to that Order, it was provided in respect of the repeal of the grievance procedure that:- “It shall not have effect where the …procedure applies by virtue of the [2004] regulations and (a) the action which forms the basis of a grievance began on or before 5 th April 2009 and continues beyond that date; and (b) the employee presents a complaint to the employment tribunal… (i) on or before 4 th July 2009 under a jurisdiction listed in Part 2 of the Schedule and section 238 of the Trade Union and Labour Relations (Consolidation) Act 1992 does not apply. ” 58. The Employment Judge accepted the submission of the Respondent that in the words of that provision, ”the action”, which formed the basis of the March 2009 grievance, was the reduction in working hours of the Claimants without receiving guarantee payments and this occurred before 5 April 2009. 59. The case for the Claimants is that the Employment Judge made an error of law as each failure to make a guarantee payment was a “separate action” and so paragraph 3(2) Part 1 of the Schedule to the Transitional Order did not apply. By way of analogy, Mr Segal pointed out that the situation was analogous to first a continuing act of discrimination, such as discriminatory disciplinary process against the claimant which started in March 2009 and ended in May 2009, and second to two discriminatory disciplinary actions with one occurring in March 2009 and the other in May 2009. His case is that the Claimants are entitled to recover for the whole period from the introduction of the Modification Agreement on 1 January 2009 on the basis that the failure to make payments constituted a series of deductions and which could be recovered pursuant to section 23(3) ERA. 60. Mr Porter contends that the claim which was made in paragraph 8.3 of the 2009 ET1 fails because the provisions of Transitional Order, which means that the grievance procedure had to be complied with as it was preserved for this claim by paragraph 3(2) of Part 1 of the Schedule to that Order. More specifically he submits that the repeal of the requirement for this procedure to be complied with does not apply where as here (a) the modified grievance procedure applied by virtue of paragraph 6 of the 2004 Regulations; (b) “the action which formed the basis of a grievance began on or before 5 th April 2009 and continues beyond the date ” (Schedule Part 1 Art.3); and (c) the claim is in respect of a jurisdiction, which is listed in Schedule 2 and was presented before 4 July 2009. 61. I agree with Mr Porter that each of these requirements is satisfied. In respect of requirement (a), the modified procedure applies to claims for deduction of wages. Turning to requirement (b), the action , which formed “ the basis of a grievance ”, was the reduction in the working week and indeed it was the subject of the formal March 24 2009 grievance. Not surprisingly para 8.3 of the 2009 claim refers to deductions in the period “01.01.2009 to 26.06.2009” and they all relate to the terms of the Modification Document. Thus this is not a case of “separate actions” as suggested by Mr Segal but a case of a “series” of actions which require and indeed have by reason of the Modification Document a “common feature” or “a course of conduct” in order to link them as was explained in Group 4 Nightspeed v Gilbert [1997] IRLR 398 [17]). Requirement (c) is satisfied as a claim for deduction of wages under section 23 ERA is one of the jurisdictions listed in Schedule 2 and the 2009 claim was presented before 4 July 2009. 62. In consequence the Employment Judge did not err in rejecting this claim. Issue D: The Estoppel Issue 63. Mr Segal contends that the Respondent is estopped from disputing that the Claimants had complied with the statutory grievance procedure, as the Respondent did not contend prior to the commencement of the 2009 claims or until their letter of 29 June 2010 as explained in paragraph 48(d) and (e) above that the March 2009 grievance did not comply with the statutory grievance procedure. He submits that if the Respondent had raised this objection to the March 2009 grievance at the time or soon afterwards, then the Claimants would have issued a fresh and valid grievance complaint. It is said correctly that the Employment Judge did not deal with this estoppel claim and that his failure to do so is the subject of a ground of appeal. 64. In support of this submission, Mr Segal relies on the statement in Chitty on Contract (30 th Edition) Volume 1 paragraph 3-107 that:- “Estoppel by convention may arise where both parties to a transaction ‘act on assumed state of facts or law, the assumption being either shared by both or made by one and acquiesced in by the other’. The parties are then precluded from denying the truth of that assumption, if it would be unjust or unconscionable to allow them (or one of them) to go back on it…To give rise to an estoppel by convention, the mistaken assumption of the party claiming the benefit of the estoppel must, however have been shared or acquiesced in by the party alleged to be estopped; and both parties must have conducted themselves on the basis of such a shared assumption…it is not enough that each of two parties acts on an assumption not communicated to the other. Such communication may be effected by the conduct of one party, known to the other.” 65. Mr Segal also seeks to derive assistance from the obiter comments of Underhill P in Birmingham City Council v Barker and others (UKEAT/0037-43, 0045-48 0053-59/10/MW). On that appeal, the issue there being considered was whether there had been compliance with step 1 of the modified grievance procedure in the context of the grievance which under that procedure required the “basis” of the complaint to be set out (EA 2002 Schedule 2 Part 2 Chapter 2 paragraph 9(a)(iii)). Although this deficiency existed, the respondent Council were in fact able to respond to the grievance. Against that background, in Barker it was said (with emphasis added) that :- “69. We cannot accept that reasoning as expressed. Specifically, we do not accept that the question whether “a particular form of grievance is compliant with the Regulations [Schedule 2 of the Act] ... is dependent on ... the content of the grievance together with the response”. As a matter of principle the statement must be construed without reference to subsequent events (cf. Dick Lovett Ltd. v Evans (UKEAT/0211/07)). However, Mr Short sought to reformulate the Tribunal’s reasoning more acceptably. He submitted that the underlying principle established by Pratt was that an employee must set out his grievance “in sufficient detail to enable the employer to respond” (see para. 44); that in the present cases it was known from the start that the Council’s response would be, as it was, “wait and see”; and that in those circumstances no further detail was required or expected. The importance of the Council’s letter was not that, as such, it could alter the character of the grievance stated but that it was evidence of the common expectation as to how that grievance would be handled, which informed the question of what degree of detail was required. We floated with Mr Short whether that argument could be characterised being one of estoppel by convention. He was chary about accepting that because, he said, it had not been put that way below; but he said that his approach produced the same result by another route.” 66. I have stressed the use in that extract of the word “ floated” because it was not a definite view or indeed the subject of detailed submissions. Mr Segal’s submission fails to appreciate that where the requirements concerning the statutory grievance procedure are not complied with, then Employment Tribunal cannot hear the claim as “there is no overriding interest of justice which can be invoked to save it ” (per Elias J in Canary Wharf v Ebedi [2006] IRLR 416 [31]). 67. I have already explained in paragraph 50 above that in the Miller case, Elias J explained that “ In my view, once the issue of procedural compliance has arisen in a way envisaged by s.32 (6), then the Tribunal simply has no jurisdiction to hear a claim unless it is presented after compliance with the procedural steps”. This shows that the requirements relating to the grievance procedure cannot be dispensed with by agreement or indeed in other way. So if the parties could not agree to regard the March 2009 grievance as valid, the Respondent could not be estopped from denying that it was valid. 68. After I had come to the clear conclusion that the Claimants could not rely on an estoppel by convention to confer jurisdiction on the Employment Tribunal, I came across the decision of the Court of Appeal in Keen v Holland [1984] 1 WLR 251 in which they rejected a claim that a tenant was estopped by convention from relying on his statutory rights. The judgment of the Court given by Oliver LJ stated that “the jurisdiction to grant possession is exercisable only subject to the statutory provisions and it is a little difficult to see how the parties can, by estoppel , confer on the court a jurisdiction which they could not confer by express agreement” (page 261). This reasoning fortifies the conclusion to which I had already come on the basis of principle as I have explained in the previous paragraph. 69. It is true that the Employment Judge did not deal with this estoppel issue and Mr Segal submits that the matter will have to be remitted, but Mr Porter contends that the Employment Judge was not obliged to set out in detail every point made by the parties. Even if the Employment Judge should have dealt with this convention by estoppel issue, I consider that there is no merit in the Claimants’ submissions and that they are doomed to being rejected. In those circumstances, this issue should not be remitted in accordance with the statement to that effect of Sir John Donaldson MR in Dobie v Burns International Security Services (UK) Ltd [1985] 1 WLR 43 [18]) and which I quoted in paragraph 34 above. 70. I therefore reject this ground of appeal. Issue F: The 2010 Claim Issue 71. The first issue raised in respect of the 2010 claim is whether the appeal related to both the 2009 and 2010 claims (as contended by the Claimants) or whether it related solely to the 2009 claim as is contended to be the case by the Respondent. The second issue only arises if the appeal related to the 2010 claim and that issue is whether it was out of time or otherwise invalid as found by the Employment Judge. The final issue is whether the Claimants should be allowed to amend their grounds of appeal. 72. Mr Porter contends that the grounds of appeal only relate to the decision on the 2009 claims and that they do not relate to the decision on the 2010 claims but Mr Segal disagrees. The Claimants' Notice of Appeal refers to both claims, but the grounds of appeal do not challenge the Employment Tribunal’s findings in respect of the 2010 claims or any of them. So it would follow that Mr Porter is right and it is noteworthy that it was pointed out in the Respondent’s Answer served in March 2012 that the Claimants’ appeal did not relate to the 2010 claims. The Claimants, however, did not seek to disabuse the Respondent of their understanding of the grounds of appeal but instead it belatedly sought to challenge the dismissal of the 2010 claim in their skeleton arguments served after 21 June 2012. I would therefore hold that the grounds of appeal did not cover the 2010 decision but the Respondent had the Claimants’ written skeleton argument in good time for the hearing of the appeal and it has not been prejudiced. So I will consider the challenge to the Employment Tribunal‘s decision on the 2010 claims. 73. The basic challenge set out in Mr Segal’s skeleton argument is that the Employment Judge should have upheld the 2010 claim, which was for “ unlawful deduction of wages in respect of non- payment of statutory guarantee payments under s28 ERA ”. I am unable to agree and this argument must fail because:- (a) As I have already explained in paragraphs 19ff above, this ground was rejected in respect of the 2009 claim because the condition in section 28(1) ERA was not complied with. Similar reasoning applies with respect of the 2010 claim because of the alteration of the periods on “which an employee would normally be required to work”; (b) There was no period after 1 October 2009 when the Claimants were in the words of section 28(1) ERA “not provided with work” and so the claim failed. Indeed the Employment Judge stated that as a result of an offer made by the Respondent in September 2009:- “89…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” ; and that (c) The Employment Judge was correct in concluding that the three month period prior to the presentation of the claim on 15 February 2010 meant the claims could only be for the period starting on 16 November 2009. He was entitled to conclude that the claims in respect of the period prior to that time were out of time and that there was no basis for contending that it was not reasonably practicable to present the ET1 within the statutorily prescribed time limits. 74. That means that the 2010 claims must fail unless the proposed amendment can be pursued and it can overcomes the three points, which I have set out. The proposed amendment is that:- “If and to the extent that the Employment Tribunal had found that the 2010 claims were out of time other on the basis that 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.” 75. This proposed amendment was only introduced late in the hearing of the appeal without any prior notice having been given to the Respondents and I would have permitted it if the Respondent would not have been prejudiced by the late amendment. Mr Porter however correctly points out, if this point had been raised in the original grounds of appeal, then on the sift, an order would have been made pursuant to Burns v Barke for the Employment Tribunal to have been required to state (i) whether it reached its decision in respect of the 198 claimants other than on the basis set out in paragraphs 102 to 104 of the decision and if so (ii) the basis for it. The matter could then have been properly considered and so the application to re-amend is too late. 76. In any event, this proposed ground could not succeed not merely because of the matters set out in paragraph 73 (a) and (c) but also because, as I have explained in paragraph 73 (b) above, 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”. Furthermore, bearing in mind the principles relating to the approach to be adopted to decisions of an Employment Tribunal as set out in paragraph 32 above and in particular the comments of Keene and Elias JJ, the decision of the Employment Judge is adequately reasoned. Section 29(4) (b) ERA on which the Claimants rely in the proposed amendment is not relevant as it is concerned with the provision of “alternative work” while 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. For all those reasons, the application for leave to amend must be refused. Conclusion 77. I therefore conclude that:- a. For the reasons set out in paragraphs 19ff above, the Employment Judge was correct to reject the claims for guarantee payments on the basis that the Claimants “would not normally be required to work in accordance with their contract of employment” on days when they were not provided with work by the Respondent as there had been an agreed variation. The mere fact that the variation was temporary was irrelevant; b. The Employment Judge was correct for the reasons set out in paragraphs 48ff to conclude that the Claimants could not substitute claims under section 34 ERA 1996 for the claims for guaranteed payments because the Tribunal simply had no jurisdiction to hear those claims and so no amendment could be made to add a claim. The proper remedy was a fresh claim; c. The provisions in paragraph 3(2) of Part 1 of the Schedule to the Transitional Order meant that the statutory grievance procedure applied to the Respondent’s failures to make payments after 5 April 2009 for the reasons set out in paragraphs 60ff above; d. The Respondents are not estopped for the reasons set out in paragraphs 66ff above from disputing that the Claimants had complied with the statutory grievance procedure because the Respondent had not contended prior to the commencement of the 2009 claims or until their letter of 29 June 2011 that the March 2009 grievance did not comply with that procedure. The reason for that is that the requirement relating to the grievance procedure cannot be dispensed with by agreement or indeed by other ways including by estoppel by convention and e. The Employment Judge was quite correct to reject the 2010 claims were not presented within the requisite three-month period and it was reasonable there was no basis for contending that it was not reasonably practicable to present the ET1 within the statutory prescribed time. The application for the re-amendment has to be refused. 78. Therefore notwithstanding the sustained and detailed submissions of Mr Segal, this appeal has to be dismissed.