Geys v Societe Generale, London Branch
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,Lord Justice Pitchford,Lady Justice Arden |
| Judgment Date | 30 March 2011 |
| Neutral Citation | [2011] EWCA Civ 307 |
| Docket Number | Case No: A3/2010/1028 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 March 2011 |
[2011] EWCA Civ 307
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
CHANCERY DIVISION
Before: Lady Justice Arden
Lord Justice Rimer
and
Lord Justice Pitchford
Mr George Leggatt QC (Sitting as a Deputy High Court Judge)
Case No: A3/2010/1028
Mr Ian Gatt QC and Ms Rachel Bennett (of Herbert Smith LLP) for the Appellant
Mr David Cavender QC (instructed by Fox Williams LLP) for the Respondent
Hearing date: 29 November 2010
Lord Justice Rimer:
Introduction
This appeal by Société Générale, London Branch ('the Bank'), is against the order dated 25 March 2010 made by Mr George Leggatt QC sitting as a Deputy High Court Judge in the Chancery Division. The Bank is the defendant to a claim brought by its former employee, Mr Raphael Geys. Mr Cavender QC represented Mr Geys, as he did below. Mr Gatt QC and Ms Bennett represented the Bank, as they also did below.
Following Mr Geys's summary dismissal by the Bank on 29 November 2007, he asserted that more than €12.5m was contractually due to him on the termination of his contract ('termination payments'), plus damages for breach of contract by the Bank on the bases that it (a) had breached an obligation under his contract to use all reasonable endeavours to make certain payments to him in a tax efficient manner in relation to the years 2005 and 2006, and (b) had wrongfully dismissed him.
The Bank's position was that all that Mr Geys was entitled to following the termination of his contract was some €7.9m by way of contractual termination payments, which it offered him. Mr Geys refused that offer and commenced his claim in the Chancery Division, including his claims for damages under both heads (a) and (b) above. Both damages claims were, however, removed from his pleading following an interim hearing in June 2009 before Mr Kevin Prosser QC, sitting as a Deputy High Court Judge in the Chancery Division. By a re-amendment to its Defence in early 2010, the Bank pleaded however that the original making by Mr Geys of the two damages claims precluded him from recovering any termination payments. That is because it is said to have caused him to fail to satisfy a condition precedent of his entitlement to such payments.
The trial of Mr Geys's claim on various liability issues before Mr Leggatt QC occupied four days in March 2010. During the trial, Mr Geys restored, by way of amendment to his pleading, his damages claim for wrongful dismissal. Mr Cavender told us that that damages claim is the only one still being pursued. I note, however, that Schedule 2 to the judge's order appears to have given directions for the pursuit of the other damages claim referred to in paragraph [2] above and so precisely what the position is in relation to that head of claim is obscure. It is not, however, material to the disposition of the issues before us. By his order the judge otherwise, and so far as material, gave judgment for Mr Geys in a sum to be assessed, with a payment on account by 1 April 2010 of €11m (less tax and NI contributions), plus interest on all sums due from 3 February 2008 at 1% above base rate. He awarded Mr Geys his costs and ordered an interim payment of £200,000 on account by 30 April 2010.
The Bank's appeal, for which I gave permission, is based on five grounds. The first two raise the question as to when Mr Geys's employment contract terminated. The remaining three raise questions as to whether any (and, if yes, what) termination payments are due to him in consequence of its termination. If any payments are so due, the answer to the 'when' question is important in ascertaining what they amount to. The Bank claims that the date of termination was either 29 November or 18 December 2007 (it matters not which). By contrast, Mr Geys claims that it was either 6 January or 29 February 2008 (it again matters not which). Assuming that he is in principle entitled to any termination payments, the date difference in financial terms is about €2.5m. That is also the measure of his wrongful dismissal claim, although he cannot of course make double recovery.
The facts
Mr Geys, a Belgian national, was employed by the Bank from 9 February 2005 as the Managing Director of its European Fixed Income Sales, Financial Institutions Division. He had a written contract of employment. It was offered to him by a letter of 28 January 2005 which also enclosed a copy of the 'Staff Handbook of the SGUK Group' ('the Handbook').
The contract includes complicated remuneration provisions, to which I will later come, but at this stage I need to refer only to two of its clauses. Clause 13, headed 'Notice', provided that:
'Your employment can be terminated on the expiry of 3 months' written notice of termination given by you to [the Bank] or by [the Bank] to you.'
Clause 17, headed 'General Information', provided that:
'This contract is in conjunction with the offer letter, [the Handbook] (as amended from time to time) and the SGUK Compliance Manual which, together with this letter [meaning the contract], form the written particulars of employment as required by law. However, in the event of any conflict of any terms set out in this Contract and those contained in the Handbook the terms of this contract shall prevail.'
The Handbook is in five sections, of which the first is headed 'Terms and Conditions of Employment'. The version provided to us is that in force from 1 January 2006 and so it post-dated the contract, but clause 17 of the contract referred to the Handbook 'as amended from time to time'. Paragraph 8.3 of the Handbook, in section 1 and headed 'Termination by [the Bank] and Payment in Lieu of Notice', provided:
'[The Bank] reserves the right to terminate your employment at any time with immediate effect by making a payment to you in lieu of notice (or, if notice has already been given, the balance of your notice period) based upon the value of your:
• Basic annual salary; and
• Flexible benefits allowance;
for your notice period (or, if notice has already been given, the balance of your notice period).'
On 29 November 2007 the Bank called Mr Geys to a meeting at which he was told, and was handed a letter stating, that the Bank 'has decided to terminate your employment with immediate effect.' He was escorted from the building and did not return to it.
Correspondence then passed between Mr Geys's solicitors and the Bank. On 7 December 2007 his solicitors wrote asking for further information as to the sums the Bank was offering to pay him following the termination of his employment and for termination documentation, but also saying that in the meantime he reserved all his rights. On 10 December 2007 Mr Adams, of the Bank's legal department, sent Mr Geys his 'Severance Agreement', said to have been prepared in line with his contract. The letter enclosed a summary of the payments proposed to be made to him and said that the Human Resources department would contact him separately 'regarding your leaver details (notice pay, holiday pay etc).' The enclosure was another letter dated 10 December 2007, setting out 'the terms of the termination agreement between [the Bank] and you in relation to the termination of your employment on 29 th November 2007', thereafter referred to as 'the Termination Date'. Paragraph 1 stated that:
'You have received your normal salary and benefits up to the Termination Date, together with any accrued but untaken holiday pay, subject of course, to normal deductions in respect of income tax and national insurance contributions. You will be informed separately of the salary and the deductions which have been made.'
Paragraph 2 listed various payments that the Bank proposed to pay Mr Geys as his entitlement under his contract. The letter then set out the Bank's proposed contractual terms for a clean break. Mr Geys was invited to agree to the terms by returning a signed copy but he declined to do so.
On 18 December 2007 the Bank paid £31,899.29 into Mr Geys's bank account. It is agreed that this was the equivalent of his basic salary and flexible benefits allowance for three months and so was a payment satisfying the monetary requirements of paragraph 8.3 of the Handbook. Mr Geys admitted in his witness statement that he became aware of the payment 'at some point before 2 January 2008' and the judge found that 'it was probably before the end of December 2007' that he did so. Mr Geys accepted in his oral evidence that, whilst he could not be sure what the payment related to, 'the best guess I could have' was that it was intended to be a payment in lieu of notice.
On 21 December 2007 Mr Geys's solicitors wrote in reply to the Bank's letter of 10 December asking for further information, in particular as to how the proposed payments had been calculated. That letter again reserved 'all our client's rights in relation to his employment/contract of employment.'
There is no dispute that at some uncertain point (but the judge made no finding as to precisely when) the Bank sent Mr Geys a payslip, accompanied by a P45, detailing the make up of the payment of 18 December 2007 and describing the major part of it as 'in lieu pay' (£37,500 before deductions). Mr Geys first saw the payslip when he returned to London on 7 or 8 January 2008 from Belgium, where he had spent the Christmas and New Year holiday.
On 2 January 2008 Mr Geys's solicitors wrote to the Bank's solicitors saying that he 'has decided to affirm his contract of employment.'...
To continue reading
Request your trial
-
Robert Brown v Neon Management Services Ltd
... ... DIVISION Royal Courts of Justice Strand, London, WC2A 2LL ... David Craig QC and ... case to do it.” ii) In Geys v Société Générale [2013] 1 AC 523 , at [141] Lord ... ...
-
Geys v Societe Generale, London Branch
...[2012] UKSC 63 Before Lord Hope, Deputy President Lady Hale Lord Wilson Lord Sumption Lord Carnwath THE SUPREME COURT Michaelmas Term [2011] EWCA Civ 307 Appellant David Cavender Abra Bompas (Instructed by Fox Williams LLP) Respondent Christopher Jeans QC Ian Gatt QC Amy Rogers (Instructed......
-
Sunrise Brokers LLP v Michael William Rodgers
... ... Here Royal Courts of Justice Strand, London, WC2A 2LL (Transcript of the Handed Down Judgment ... , as confirmed by the decision of the Supreme Court in Geys v Société Generale [2013] 1 AC 523 , the Respondents ... ...
-
Robert Hendy v Ministry of Justice
... ... DIVISION Royal Courts of Justice Strand, London, WC2A 2LL ... Michael Paulin for the Claimant ... Hospital NHS Foundation Trust [2012] 2 AC 22 and Geys v Société Générale [2013] 1 AC 523 , para 73, Lord ... ...
-
PILON Immediately Effective To Terminate Contract
...Générale, London Branch v Geys [2011] EWCA Civ 307 The Court of Appeal determined, in accordance with the general principles of the law of contract, that the employee's contract had terminated immediately when the PILON payment was made. The PILON clause expressly provided that all that was......