London Transport Executive v Clarke

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE TEMPLEMAN,LORD JUSTICE DUNN
Judgment Date18 February 1981
Judgment citation (vLex)[1981] EWCA Civ J0218-3
Docket Number81/0086
CourtCourt of Appeal (Civil Division)
Date18 February 1981
London Transport Executive
Appellants
and
Lanford Clarke
Respondent

[1981] EWCA Civ J0218-3

Before:

The Master of The Rolls

(Lord Denning)

Lord Justice Templeman and

Lord Justice Dunn

81/0086

EAT 478/79

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice.

MR. ANTHONY SCRIVENER, Q.C. and MR. CHRISTOPHER CARLING (instructed by V.D. Moorfoot, Esq.) appeared on behalf of the Appellants.

MR. E. TABACHNIC (instructed by Messrs. Pattinson & Brewer) appeared on behalf of the Respondent.

THE MASTER OF THE ROLLS
1

Lanford Clarke was born in Jamaica. He came over to this country some years ago. He has a wife here and several children. He has had a good job too—for years with the London Transport Executive. He was a bus mechanic, earning £83 a week gross. But he liked to go back to Jamaica whenever he could. In 1977 he got leave for two months, but stayed for four months—sending a medical certificate to excuse his absence. In 1978 he was off work again for 2 1/2 months, saying he was sick. In 1979 he applied for leave again to go to Jamaica. This was for six weeks from the 28th February, 1979 to the 12th April, 1979. But it was refused. It is usually only granted once in three years. He renewed his application. Still it was refused. The personnel officer advised him to go to the section engineer, who would see if he could be granted leave. He asked: "What will happen to me if I just take off?" The personnel officer replied: "There is a laid down procedure in the event of absence. It will culminate in your name being removed from the books".

2

Despite that clear warning, Mr. Clarke did just "take off". He got it into his head that he would be refused leave because of his colour. So he went absent without leave. He wrote a letter giving his reasons:

3

"…As I am black my leave was turn down but in any case as it is most important to me I will have to take off and any action may considered against me I will be going to the Race Relations Board…I don't see why I should be victimised just because of my colour".

4

So he "took off". On the 28th February, 1979 he went to Jamaica for a holiday. He left his wife and children here. He came back about seven weeks later, bringing with him a medical certificate which the industrial tribunal viewed "with some surprise". It was given by a medical officer in Jamaica, dated the 2nd March, 1979, and said that he was "unfit to carry on his occupation for 49 days from 28/2/1979". It was indeed surprising. His illness would last for the exact time of his holiday—to the very day.

5

Whilst he was away the London Transport wrote letters to him on their stock forms to his London address. The first, on the 5th March, asked for an explanation of his absence. The second, a week later, on the 12th March, said that if no reply was received within fourteen days it would be assumed that he did not wish to continue in the employment of the London Transport. The third, a fortnight later, saying that his name had been permanently removed from the books.

6

Although he did not reply, his wife did. On the 18th March, 1979 she said: "My husband don't intend give up his job…he will be back to his job in April. Please be lenient to us".

7

After the 18th April he got back and applied to get his job back, but it was refused. He complained to the Race Relations Board, but did not pursue it. He complained to the industrial tribunal for unfair dismissal. The industrial tribunal found that he was "unfairly dismissed even though it was largely brought about by his own action". They decided that he should be re-engaged. The London Transport refused to re-engage him. So, if the ruling stands that he was "unfairly dismissed", he will get a large sum of money as compensation—running into over a thousand pounds.

8

Such are the facts in outline. They give rise to this question: When and by whom was this contract of employment "terminated"? Was it terminated by Lanford Clarke himself when he went off on the 28th February, 1979 without leave for a holiday in Jamaica? Or was it terminated by London Transport when they wrote the letter of the 26th March, 1979 taking his name off the books?

9

THE COMMON LAW

10

It is over 50 years ago now that I studied in depth the common law relating to the discharge of contract by breach or by incapacity or by repudiation. The result is to be found in the second volume of Smith's Leading Cases, 13th Edition (1929) at pages 46 to 56. I adhere to what I then said. All I would say is that nowadays some people seem to think that a contract is never discharged by a breach—no matter how fundamental -unless it is accepted by the other side. That is a great mistake. It is the result of the modern phraseology about "repudiatory breach". A repudiation by words only saying that he will not perform a future obligation—an anticipatory breach—is, of course, a thing "writ in water". It is as nothing unless and until it is accepted. But a repudiatory breach is better described as a "fundamental breach" or a "breach going to the root of the contract". Such a breach may well lead to the discharge of a contract without any need for acceptance. The classic instance is where a singer genuinely fell ill and could not attend the rehearsals. Her incapacity discharged the theatre from further performance, without any talk of acceptance. It would be just the same if she had not really been ill but had pretended to be ill and thus been guilty of a breach going to the root of the contract. Again the contract would be discharged without any talk of acceptance. That is clear from the illuminating judgment of Mr. Justice Blackburn in Poussard v. Spiers (1876) 1 Queen's Bench Division 410 at pages 414–5 which I have often quoted.

11

If we put anticipatory breach on one side, these actual breaches can be divided at common law into three categories. I will illustrate the position from some modern cases. First, in Laws v. London Chronicle (1959) 1 Weekly Law Reports 698, the managing director at a business meeting said to the lady representative: "You stay where you are". She did not do so but walked out of the room. Till then she had been a good girl. She was dismissed. Her conduct was a breach of her contract of employment, but it did not go to the root of the contract such as to justify her dismissal. The company were liable in damages for wrongful dismissal. Second, in Pepper v. Webb (1969) 1 Weekly Law Reports 514, the lady of the house asked the head gardener to put some plants in the greenhouse. He said he was not going to do it. The master of the house went out and said to him: "The job will only take half-an-hour. Why make all this fuss about it?" The head gardener said: "I couldn't care less about your bloody greenhouse and your sodding garden". It was a breach going to the root of the contract. It gave the master an option whether to dismiss him or not. He elected to dismiss him. It was justifiable. The master was not liable for wrongful dismissal. Third, but if the head gardener had just walked off and got another job, it would be a breach which discharged the contract of employment without any need for acceptance. If the head gardener had disliked his new job and came back after a fortnight, the master would have been entitled to say: "You gave up your job here. I cannot have you back now".

12

THE STATUTE

13

Under our modern legislation a new question arises. It arises under section 54 of the Employment Protection (Consolidation) Act 1978, re-enacting earlier sections going back to 1971. When an employee is dismissed for misconduct, we have to ask—and to answer—the questions: Who "terminates" the contract? If the employer "terminates" it, it is taken to he unfair unless the employer proves that it was fair. But, if the employee "terminates" it by his own misconduct, he gets nothing.

14

Much difference of opinion has been evoked amongst the judges on that question under the Act. So much so that I feel it is desirable for this court to afford some guidance. I think it is best done by applying the common law principles which I have just stated. The cases fall into two groups.

15

THE EMPLOYEE "TERMINATES" IT

16

The first group is when the misconduct of the employee is such that it is completely inconsistent with the continuance of the contract of employment. So much so that the ordinary member of the tribunal would say of him: "He sacked himself". In these cases it is the employee himself who "terminates" the contract. His misconduct itself is such as to evince an intention himself to bring the contract to an end. Such as when an employee leaves and gets another job: or when he absconds with money from the till: or goes off indefinitely without a word to his employer. If he comes back and asks for his job back, the employer can properly reply: "I cannot have you back now". There is no election in that case. The man dismisses himself. In the words of Lord Justice Shaw in Gunton v. Richmond-Upon-Thames London Borough Council (1980) 3 Weekly Law Reports at page 721, there is a "complete and intended withdrawal of his service by the employee".

17

THE EMPLOYER TERMINATES IT

18

The second group is where the misconduct of the employee is had enough to justify the employer at common law in dismissing him, but leaves it open to the employer whether to dismiss him for it or not. His misconduct is such as to show that he is not going to fulfil his duties as he ought to do: but nevertheless it is not such as to be entirely disruptive of the contract. He does not "sack" himself: but he is guilty of a breach which entitles the employer at common law to dismiss him. If the employer does elect to...

To continue reading

Request your trial
49 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT