Contract Doesn't Live Here any More?
| DOI | http://doi.org/10.1111/j.1468-2230.1984.tb01635.x |
| Author | Tony Kerr |
| Date | 01 January 1984 |
| Published date | 01 January 1984 |
CONTRACT DOESN’T LIVE
HERE
ANY
MORE?
“Parliament intended that Industrial Tribunals should provide
a quick and cheap remedy for what it had decided were injustices
in the em loyment sphere. The procedure was to be such that
having to go to lawyers for help. Within a
few
years le alism
IN considering any claim for unfair dismissal an Industrial Tribunal’s
starting point is always section
57(3)
of the Employment Protection
(Consolidation) Act
197tL2
“Usually it is the only relevant law for it
is a simple and comprehensive provision. This is as it should be
because these are claims which must, by their very nature, be
disposed of simply and quickly, without reference to legalistic
refinement^."^
The section operates in three stages. First the
employer must show why
in
fact
the employee was di~missed.~ Next
the employer must show that this reason
is
a substantial reason
of
a
kind such as to justify dismissal
of
an employee holding the position
which that employee held’; this, the present Master
of
the Rolls has
warned, is not “an exercise in elaborate legal classification.”6 The
final stage requires the Tribunal to be satisfied that, “in the circum-
stances and having regard to equity and the substantial merits
of
the
case,” the employer acted reasonably in treating this reason as a
sufficient reason for dismissing the employee
.7
Here the Tribunal
“has to look at the question in the round and without regard to a
lawyer’s technicalities.’’ It has to look at it “in an employment and
industrial relations context and not in the context of the Temple and
Chancery Lane.”8
The purpose of this article is to examine how it is, that while it
should be rare for any decision of an Industrial Tribunal under
section
57(3)
to give rise
to
any question of law, Parliament has
allowed, to misquote Winn
L.J.,
“academic discussion as to the
operation in certain circumstances, of the law of contract,
of
repu-
diation and acceptance, and acceptance of offers, novations and
I
Per
Lawton L.J.,
Clay Cross (Quarry Services) Ltd.
v.
Fletcher
[1979] I.C.R.
1,
8.
Cited with approval by Dunn L.J. in
Methven
v.
Cow
Industrial Polymers Ltd.
[1980]
I.C.R. 463,470.
*
Hereafter referred to
as
the 1978 Act. In Northern Ireland, Industrial Relations
(Northern Ireland) Order 1976, art. 22(10), hereafter referred to as the No. 1 Order.
3
Per
Donaldson
L.J.,
Union
of
Construction and Allied Trades and Technicians
v.
Brain
[1981] I.C.R. 542,549.
‘
The 1978 Act does not concern itself with possible justifications which
occur
to the
employer subsequent to the dismissal, see
W.
Devis
and
Sons
Lrd.
v.
Atkins
I19771 A.C.
931.
both emp
P
oyers and employees could present their cases without
has started to take over. It must be driven back if possib
k
e.”’
s.57(2),
e.g.
capability, conduct, qualifications.
U.C.T.A.T.v.Brain[1981]I.C.R.542,549.
Industrial Tribunals are not to substitute their opinion for that of management. They
can only intervene where no reasonable management could have reached such a decision,
because
it
was outside the range
of
responses which reasonable management would have
made, see
Britbh Leyland
(U.K.)
Ltd.
v.
Swifi
[1981] I.R.L.R. 91
(C.A.).
Per
Donaldson L.J.,
U.C.
T.A.T.
v.
Brain
[1981] I.C.R. 542,
550.
30
Jan.
19841
CONTRACT
DOESN’T
LIVE
HERE
ANY
MORE?
31
counter offers
. . .
to produce waste
of
time and
en erg^."^
In
W.
E.
Cox
Toner (International)
Lfd.
v.
Crook,’o
for example, the Indus-
trial Tribunal were required to consider whether the conduct
of
the
employer amounted to a repudiatory breach
of
contract
and
whether
the conduct
of
the employee was an affirmation. It is not surprising
that the Employment Appeal Tribunal (E.A.T.) held that the
Industrial Tribunal had misdirected themselves in law.” That some
legal argument will appear in the course
of
proceedings is inevitable,
but a major reason for the domination
of
concepts drawn from the
law
of
contract is that the statutory definition
of
dismissal
focuses,
not on termination
of
employmenf,
but on termination
of
the
contract
of
employment.
l2
Section
55(2)
provides that an employee shall be treated as
dismissed where-
the contract under which he is employed by the employer is
terminated by the employer, whether it is
so
terminated by
notice or without notice, or
where under that contract, he is employed for a fixed term,
that term expires without being renewed under the same
contract, or
the employee terminates that contract with or without notice,
in circumstances such that he is entitled to terminate it without
notice by reason
of
the employer’s conduct.
This threefold hefinition
of
dismksai is founded on the assumption
that the question
of
how a contract
of
employment may be termi-
nated at common law is clear and settled. This assumption is
que~tionab1e.l~ At common law the right
of
the employer to termi-
nate the contract and the method by which this might be done
depended on the terms
of
the contract. If the contract were silent on
those matters then terms entitling the employer to terminate upon
giving reasonable notice and summarily for cause would be implied.
No
procedural requirements, such as a hearing, were implied.
~~~~~
Marriott
v.
Oxford and District Co-operative Society
(No.
2)
I19701
1
Q.B.
186, 193.
lo
[1981]
I.C.R.
823.
‘I
Browne-Wilkinson J. said, at
828,
that “it was accepted by both sides, and we think
rightly, that the general principles
of
the law
of
contract apply to this case, subject to such
modifications as are appropriate to take account
of
the factors which distinguish contracts
of
employment from other contracts.” The Court
of
Appeal has recently warned however,
in
Woods
v.
W.
M. Car Services (Peterborough) Ltd.
[1982]
I.C.R.
693,
that when an
Industrial Tribunal makes a finding on repudiatory breach then-so long as they direct
themselves properly in law-their finding is a
finding of fact.
This is important because
appeals lie only to the Employment Appeal Tribunal on questions
of
law, see
s.136(1)
of
the
1978
Act; nevertheless an Industrial Tribunal may misdirect itself in law
or
misunder-
stand the law,
or
misapply the law. As to what conduct may constitute repudiation in an
employment context see
Adams
v.
Charles Zub Associates
Ld.
[1978]
I.R.L.R.
551,
Longman
v.
Federal Business Development
(1982) 131
D.L.R.(3d)
533,
Beckett
v.
Britkh
Broadcasting Corporarion
[1983]
I.R.L.R.
44.
l2
See Bercusson,
The Employment Protection (Consolidation) Act
1978:
Current Law
Statutes Reprint
General note
44155;
Elias “Unravelling the Concept
of
Dismissal”
(1978)
7
I.L.J.
16
an&
100;
Davidson “Termination and the Gap between Contract and Employ-
ment”
(1980) 31
N.I.L.Q.
339.
See McMullen, “A Synthesis
of
the Mode
of
Termination
of
Contracts
of
Employment”
(1982) 41
Cam.L.J.
110.
To continue reading
Request your trial