Contractual claims arising on termination, chiefly wrongful dismissal and unpaid bonuses, and the tribunal's limited jurisdiction over them. Addis v Gramophone Co Ltd; Geys v Societe Generale.
Wrongful dismissal; damages are limited to financial loss (notice pay) and do not cover injury to feelings or reputation.
Contract; damages; loss of publicity/reputation.
Ch 169 - Contract; fidelity; employees have a duty of fidelity not to work for a competitor in their spare time.
Tax/Status; the determination of employment status is a mixed question of fact and law.
1 WLR 698 - Contract; dismissal; disobedience of a lawful order is not always gross misconduct; it depends on the gravity.
1 QB 279 - Wrongful dismissal; gross misconduct; taking money from the till (even if intended to repay) was gross misconduct.
Unfair dismissal; qualifying period; the effective date of termination includes the statutory minimum notice period.
Wrongful dismissal; context; conduct must be judged in its full factual context; the Court of Appeal held that a head gardener was wrongfully dismissed where the employer's own provocative and unreasonable conduct contributed to the breakdown; the case confirms that courts look at the overall relationship and the employer's own behaviour, not simply the employee's isolated act.
Wrongful dismissal; damages; damages can include the time it would have taken to complete a contractual disciplinary procedure.
Share options; unfair dismissal; compensatory award; the tribunal may include in the compensatory award the value of a lost chance of share options vesting, even where the employee had no contractual entitlement to the options; the tribunal is not limited to compensating only for contractually-guaranteed rights and may assess the value of benefits, including share options, the employee would likely have received but for the dismissal.
Contract damages; distress and inconvenience. Per Bingham LJ: 'A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party.' The exceptions are where the very object of the contract is to provide pleasure, relaxation or peace of mind, and where distress is caused by physical inconvenience resulting from the breach. The correct authority for resisting a claim for injured feelings in an ordinary contract claim — unlike Addis and Johnson v Unisys, it is not confined to the dismissal context, so it applies where there is no dismissal at all.
Contract; damages; damages for mental distress.
Gross misconduct; conduct must fundamentally undermine the trust and confidence in the relationship. Approved in XX v YY as the simplest formulation, because it absorbs the nature of the contract, the severity of the breach and the reason the employee acted as they did.
1 AC 268 - Contract; in exceptional cases, an account of profits (skimming) may be awarded for breach of contract.
Contract; notice; notice given orally is effective unless the contract specifies written notice.
Evidence; 'Without Prejudice'; admissions made in WP correspondence are admissible if the privilege is waived or exceptions apply.
Contract; repudiatory breach; restates the test as whether, looking at all the circumstances objectively from the perspective of a reasonable person in the position of the innocent party, the contract-breaker has clearly shown an intention to abandon and altogether refuse to perform. All the circumstances count insofar as they bear on that objective assessment: motive is irrelevant if relied on solely to show subjective intention, but relevant where it reflects something the innocent party knew, or a reasonable person would have known, and which throws light on how the act would be viewed. Applied in the employment context in Tullett Prebon and XX v YY.
Contract; damages; damages for breach of a contractual disciplinary procedure are limited (Johnson exclusion zone).
Termination of contract; elective theory; a wrongful repudiation of a contract of employment does not terminate the contract unless and until the other party elects to accept the repudiation.
Constructive dismissal; trust and confidence; the EAT rejected the submission that Tullett Prebon had changed the law so as to require a tribunal to make a specific finding on the employer's subjective intention. The Court of Appeal there was emphasising that only objective intention is relevant, ascertained by looking at all the circumstances. Woods and Malik remain intact: breach of the implied term requires no intention to repudiate.
Breach of contract; implied terms; where an employer has followed a practice (here, enhanced redundancy payments) without exception for a substantial period, the practice may acquire contractual status through custom and practice. The Court of Appeal applied _Albion Automotive Ltd v Walker_ and confirmed the relevant factors: whether the policy was drawn to employees' attention, whether it was followed without exception, and the number of occasions on which it was applied.
Contractual interpretation; textualism vs contextualism; the Supreme Court clarified that interpretation is a unitary exercise involving both the language of the contract and the factual context.
UKSC - Contract; 'fire and rehire'; an employer cannot fire and rehire to remove a 'permanent' benefit (Retained Pay).
Implied Terms; duty of care; no implied duty to protect employees from criminal conviction in foreign jurisdictions while performing duties.
Contracts; discretion; implied term that flexibility clauses must be exercised honestly and rationally (Braganza duty).
Breach of contract; conditions precedent vs subsequent; implied notice. The EAT held that an offer letter containing all key employment terms (salary, start date, hours, benefits) expressed as 'subject to' references, right-to-work check and probation created a binding contract subject to conditions subsequent, not conditions precedent preventing formation. The probation condition could only logically operate within an existing employment relationship. Reasonable notice is assessed at the date of contract formation, the employer's standard terms, produced only during litigation, could not be incorporated retroactively. Three months' implied notice was reasonable for a senior role involving international relocation.
Wrongful dismissal; gross misconduct; duress. An assistant head teacher sent a sexual message to someone she understood to be a child while under coercive control, and did not report it for 18 months. The tribunal held that because repudiatory breach is assessed objectively, her motive could not affect the answer. HHJ Tayler held this was an error of law: applying Eminence and Neary, the tribunal must consider all the circumstances of the breach insofar as they bear on the objective assessment, including the pressure the employee was under. Duress may weigh heavily on the sending of the message and much less on the failure to report it. Remitted to the same tribunal.
Breach of contract; probationary period; an express contractual right to extend a probationary period must be actively exercised. By allowing the probationary period to pass without dismissing the employee or expressly exercising the right to extend it, the employer lost the right to dismiss on one week's notice and the employee became entitled to three months' notice under her contract.