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Employment Law

Legal guidance - compliance - software

09 OCT 2014

Abercrombie v AGA Rangemaster Ltd [2013] EWCA Civ 1148; [2013] IRLR 953; (2014) EMPLR 046

Edward  Benson


11 October 2013

Court of Appeal (Civil Divison)

The Chancellor of the HC, Kitchin and Underhill LJJ

The agreement of employees to accept reduced working to cope with poor trading conditions does not prevent them from claiming guaranteed pay under s 28 of the Employment Rights Act 1996 for any days they do not work as a result of that agreement.

Hourly paid employees had a contractual working week of 39 hours. Due to poor trading conditions, the employer reached a temporary agreement with the recognised trade union to reduce hours so that employees would only work Monday to Thursday.

A and others claimed they were entitled to guaranteed pay under s 28 of the 1996 Act. Section 28(1) provides:

‘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 diminution in the requirements of the employer’s business for 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.’

The Court of Appeal held that, although the employees had agreed a temporary variation to the contract, their contract still normally required them to work on Fridays. The conditions in s 28 were therefore satisfied and the employees were entitled to guaranteed pay.
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