Hill v C. A. Parsons & Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAMP,THE MASTER of THE ROLLS |
| Judgment Date | 10 November 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J1110-1 |
| Date | 10 November 1971 |
| Court | Court of Appeal (Civil Division) |
[1971] EWCA Civ J1110-1
The Master of the Rolls (Lord Denning)
Lord Justice Sachs and
Lord Justice Stamp
In The Supreme Court of Judicature
Court of Appeal
Appeal by plaintiff from order of Mr. Justice Brightman on 23rd August 1971.
Mr. RAYMOND WALTON, Q. C., and Mr. JACK HAMES (instructed by Messrs. Gaster Vowles Turner & Loeffler) appeared on behalf of the Appellant Plaintiff.
Mr. P. G. LANGDON-DAVIES and Miss J. H. RITCHIE (instructed by Messrs. Allen & Overy) appeared on behalf of the Respondent Defendant Company.
I. PRELIMINARY
In this case a Trade Union called the Draughtmen's and Allied Technicians' Association seek to force employers called Parsons to engage only members of that Union. They have extracted an agreement out of the employers to that effect. In pursuance of that agreement, the employers have purported to terminate the engagements of those servants who have not joined the Union. The servants have brought this action to test the position. They wish to know whether the conduct of the employers is lawful: and thether it can be stopped.
II. THE FACTS
Mr. John William Hill is a chartered engineer, now aged 63. He has been employed by C. A. Parsons & Co. Ltd. for the last thirty-five years, and is due to retire in two years' time, when he becomes 65. His salary is £3,000 a year and is soon to be raised. He is a member of their pension scheme. It is important for him to serve till the end of his time, because his pension depends on his average salary for his last three years.
Before 1968, Mr. Hill and other professional engineers were not members of a trade union. But employees of the company of lesser standing, such as draughtsmen and technicians, belonged to one or other of two trade unions. Most belonged to DATA (The Draughtsmens' and Allied Technicians' Association): others belonged to a rival union called ASTMS (The Association of Scientific Technical and Managerial Staffs). DATA then engaged in a vigorous campaign to increase its membership andto gain exclusive negotiating rights. This led to many disputes. Themembers of DATA "worked to rule" on more than one occasion.
Mr. Hill and other members of the professional staff were disturbed by these inter-union disputes. They joined a union of professional engineers called UKAPE (United Kingdom Association of Professional Engineers). This union has no political objectives and does not seek to use disruptive means of strife.
In March 1970, DATA determined to make all the employees join their union. They called their members out on strike and threatened to "black" the company's products. This placed the company in a critical economic position. Eventually, on 15th May 1970, the company capitulated to the demands of DATA. They agreed to make all their employees join DATA. They signed an agreement with DATA which covered all persons below the heads of departments and assistant heads. It covered, therefore, professional engineers like Mr. Hill. (There was to be a list in an appendix of the jobs covered, but this appendix has never been issued). This agreement contained these clauses:
"1. DATA shall have sole negotiating rights for all technical staff covered by this agreement.
2. Membership of DATA will be a condition of service for all new recruits to technical staff.
3. The company will express to all non-union members of the technical staff its strong wish and desire that they should forthwith join DATA. After a period of twelve months from the signing of this agreement, it will be a condition of service for such staff to be members of DATA".
After the twelve months expired, the company sought to comply with the stipulations which DATA had forced upon them. On 15th May 1971, the company wrote to thirty-eight of the professional staff a circular letter. It was in this form:
19th May, 1971.
"Dear Mr. Hill,
In accordance with the agreement which the company made with DATA on 15th May 1970, we hereby give onemonth's notice of a change in your conditions of employment.
If you are not already a member of DATA, and prior to 15th May 1970, were not a member of another trade union affiliated to the TUC, it will be a condition of employment that you are required to become a member of DATA.
If you have not already done so, you are requested to comply with this condition.
If you wish to have further sight of the company's agreement with DATA, you may do so".
Mr. Hill did not agree to the change. He did not become a member of DATA. Nor did the other thirty-seven. In consequence, on 30th July 1971, the company gave each one month's notice to terminate his employment. The letter signed by the managing director was as follows:
"In a letter to you dated 19th May 1971, the company gave one month's notice of a change in your conditions of employment, that is, that you must become a member of DATA.
As far as I am able to ascertain, you have not to date complied with this condition and are therefore in breach of your contract of employment.
In view of this, I regret to have to advise you that your employment with this company will terminate at 5.15 n. m. on Tuesday. 31st August 1971, unless prior to this date you have taken steps to comply with the"condition in your contract of employment regarding DATA membership.
The company is bound to honour its agreement of 15th May 1970, in this matter, and wishes it to be understood that the sole reason for issuing this notice of termination of employment is the fact that you are in breach of your conditions of employment".
Faced with this notice to terminate his employment, Mr. Hill, on 13th Autust 1971, brought this action against the company. It is a test action to test the position of the thirty-eight. He asked for an interim injunction to restrain the company from implementing the notice dated 30th July, 1971, purporting to determine his employment. He went before the vacation Judge on 25th August, but the Judge refused the injunction. The Judge said:
"To my mind there is no doubt whatever that the company will be committing a wrongful act against the plaintiff if it terminates his employment on 31st August, as it threatens to do. However, in my judgment, this Court has no power to restrain that wrong".
After some discussion, he added:
"If I had power to grant an injunction, I would have done so, but I felt constrained by the law".
The plaintiff told the Judge that he desired to appeal. The defendants very sensibly agreed that, pending the appeal, they would not implement the notice. So the thirty-eight are still at work.
III. LETTER of 19th MAY, 1971.
In the letter of 19th May 1971, the company seemed to think that they could change the conditions of Mr. Hill'semployment without his consent. They had no power to do any such thing. Unless he agreed, they would have to terminate his employment by proper notice and then offer him employment on the new conditions. The letter was, therefore, of no effect.
IV. THE LETTER of 30th JULY 1971.
In the letter of 30th July 1971, the company purported to terminate Mr. Hill's employment by giving one month's notice. They had no power to do any such thing. In order to terminate his employment, they would have to give reasonable notice. I should have thought that, for a professional man of his standing and, I may add, his length of service, reasonable notice would be at least six months, and may be twelve months. At any rate, one month is far too short.
Then comes the important question: What is the effect of an invalid notice to terminate? Suppose the master gives the servant only one month's notice when he is entitled to six? What is the consequence in law? It seems to me that if a master serves on his servant a notice to terminate his service, and that notice is too short because it is not in accordance with the contract, then it is not in law effective to terminate the contract - unless, of course, the servant accepts it. It is no more effective than an invalid notice to quit. Just as a notice to quit which is too short does not terminate a tenancy, so a notice which is too short does not terminate a contract of employment.
Test it this way: Take master and servant who are on perfectly good terms with complete confidence in one another. The master decides reluctantly to give the servant notice, but it is too short. The servant can go at once to his master and say:"This is no good: I am entitled to six months' notice". The master, if he is a law-abiding citizen, will look at the contract or take legal advice. He will then say to the servant: "You are quite right. It is too short. Pay no regard to it. I will give you notice of proper length and you can work out your time". In that case the contract clearly continues.
If the servant is entitled thus to put the master right - by telling him the notice is had - surely the Court can do so also. It can say to the master: "Your notice is too short. It does not terminate the contract of employment. You must not act on it". The master, if he is wise, will obey this injunction. The contract of employment will not terminate on the named day, but will continue until determined by a notice of proper length.
V. SUPPOSE THE MASTER INSISTS ON THE NAMED DAY
Suppose, however, that the master insists on the employment terminating on the named day? What is the consequence in law? In the ordinary course of things, the relationship of master and servant thereupon comes to an end: for it is inconsistent with the confidential nature of the relationship that it should continue contrary to the will of one of the parties thereto As Lord Kilmuir said in Vine v. National Dock Labour Board (1957) A. C., referring at page 500 to the ordinary master and servant case: "If the...
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