Jenvey v Australian Broadcasting Corpn
| Jurisdiction | England & Wales |
| Neutral Citation | [2002] EWHC 927 (QB) |
| Date | 2002 |
| Year | 2002 |
| Court | Queen's Bench Division |
Employment - Contract of employment - Implied term - Employer intending to dismiss employee by reason of redundancy - Employer dismissing employee for other reason - Employee thereby deprived of contractual redundancy benefits - Whether implied term prohibiting dismissal for any reason other than redundancy
The claimant employee was dismissed shortly after the defendant employer had accepted, in employment tribunal proceedings brought by the employee, that the employee was employed full-time and not part-time. An employment tribunal found that the employee had been dismissed unfairly, for asserting his statutory rights. The tribunal also took the view that at the time of the dismissal the employer was intending to dismiss the employee in any event, because the employee would not change from full-time to part-time work, which would have constituted a dismissal by reason of redundancy, entitling the employee to enhanced redundancy compensation. The employee brought proceedings for breach of contract, alleging that there was an implied term in his contract to the effect that in the event of a redundancy situation arising the contract would not be operated so as to remove his entitlement to contractual redundancy benefits, save with good cause.
On the claim—
Held, allowing the claim, that there were circumstances where it would be contrary to the functioning and purpose of a redundancy scheme to permit an employer to exercise his contractual powers so as to deny an employee the very benefits which the scheme envisaged would be paid; that a contract of employment contained an implied term to the effect that once the employer had determined that an employee would be dismissed by reason of redundancy, such that his dismissal for any other reason would defeat the employee's right to contractual benefits which accrued when the dismissal was by reason of redundancy, the employer could not lawfully dismiss the employee for any reason other than redundancy, unless the dismissal was for good cause; and that, therefore, the employer was in breach of contract in dismissing the employee for the reason it did (post, paras 26–28).
Quaere. Whether a wider term can be implied prohibiting an employer from dismissing an employee save for good cause once a redundancy situation has arisen, regardless of whether the employer has yet determined that the particular employee would be dismissed by reason of redundancy (post, para 29).
The following cases are referred to in the judgment:
Adin v Sedco Forex International Resources Ltd [
Aspden v Webbs Poultry and Meat Group (Holdings) Ltd [
Brompton v AOC International Ltd [
Hill v General Accident Fire and Life Assurance Corpn plc [
Lavarack v Woods of Colchester Ltd [
O'Laoire v Jackel International Ltd (No 2) [
Sajid v Sussex Muslim Society
Villella v MFI Furniture Centres Ltd [
No additional cases were cited in argument.
CLAIM
By a claim form the claimant, Mark Jenvey, claimed damages against the defendant, the Australian Broadcasting Corpn, who had employed the claimant, for breach of his contract of employment by dismissing the claimant without good cause so as to remove the claimant's entitlement to contractual redundancy benefits.
The facts are stated in the judgment.
Jason Galbraith-Marten for the claimant employee.
Suzanne McKie for the defendant employer.
23 April. The following judgment was handed down.
ELIAS J
1 The claimant in this case is suing for breach of his employment contract. The circumstances of the claim are somewhat unusual.
2 The claimant commenced employment with the Australian Broadcasting Corpn, the defendant in this action, in April 1987. He was employed as a sound recordist working from the defendant's London premises. He continued working with the defendant under a series of fixed term contracts until his contract was terminated on 31 December 1998.
3 In the course of 1997 there were discussions between the claimant and the defendant as to whether the claimant should work part-time. In September 1997 the defendant purported to change the claimant's employment with effect from 1 January 1998 so that he would work for the period 1 January 1998 to 31 January 1998 on a part-time basis. The claimant's salary was reduced to a part-time salary with effect from 1 January 1998 to give effect to that decision, but the claimant contended that he had never accepted this variation in his contract of employment. Accordingly he refused to work part-time and asserted that he was entitled to treat his employment as continuing on a full-time basis.
4 Subsequently, because of the failure to reach an amicable conclusion of this matter, the claimant issued proceedings in an employment tribunal on 22 May 1998 seeking to have a written statement of his employment particulars. In this way he wished to establish his right to continue contractually as a full-time employee, and to receive the appropriate pay. That application was settled by agreement between the parties on 10 August 1998. The terms of settlement included the acceptance by the defendant that it should pay full arrears of salary for the period from 1 January until the date of settlement. It was also agreed the claimant would continue thereafter to work as a full-time employee.
5 In the following month, on 15 September, the claimant was given notice of dismissal by the defendant. The defendant informed the claimant in that letter that it had been considering its future requirements and had decided not to renew his contract which was due to expire on 31 December 1998. (The fixed term contract would have terminated in any event on that date, and it is not altogether clear whether notice was strictly required, but in any event it was given. Furthermore, it was not suggested before me that the mere fact that his dismissal would have resulted from the effluxion of a fixed term contract defeated his contractual redundancy claim.) He was also told that since he had accrued an excessive amount of annual leave, he should absent himself on what was termed “recreational leave” as from 28 September until the termination date on 31 December. There had been no consultation with the claimant prior to the receipt of this letter.
6 The claimant requested written reasons for his dismissal. By a letter dated 18 March 1999, the employer stated: “[The defendant] did not offer you further employment because the position is no longer required in a full-time capacity.” The defendant says that there was a part-time position but the claimant had always made it unambiguously clear he was not prepared to accept that. Accordingly, it contended that there was no purpose in consulting him before sending the letter of dismissal.
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