Miles v Wakefield Metropolitan District Council

I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Templeman and Lord Oliver of Aylmerton. I agree, for the reasons they give, that the salary payable to the respondent ("the plaintiff") by the appellants ("the council") was not an honorarium for the mere tenure of an office but had the character of remuneration for work done. The salary was paid for a working week of 37 hours. The more difficult question at the heart of this appeal is whether the council were entitled, in the circumstances, to deduct and withhold a proportion of the weekly salary corresponding to the three hours of work required to be done on Saturday mornings during the weeks when the plaintiff was refusing to perform his duty of celebrating marriages on Saturdays. This depends, in turn, on whether in the like circumstances, if there had been a straightforward contract of employment, the employers would have the right to make such a deduction independently of any set-off of damages for breach of contract. By their letter of 8 October 1981 the council made clear that the partial and imperfect performance of his Saturday duties which the plaintiff was willing to undertake was not acceptable. If he was not prepared to celebrate marriages on Saturdays, which was part of the duty required by his terms of service, he was not to attend at his office and would not be paid if he did. I regard this attitude manifested by the council as a central feature in the dispute, which serves to narrow and define the question of law falling for decision. If an employee refuses to perform the full duties which can be required of him under his contract of service, the employer is entitled to refuse to accept any partial performance. The position then resulting, during any relevant period while these conditions obtain, is exactly as if the employee were refusing to work at all. It follows that the central question of law can be stated thus: if an employee, entitled to a weekly salary for a working week of a defined number of hours refuses to work for the whole or part of a week, is the employer entitled, without terminating the contract of employment and without relying on any right to damages for breach of contract, to withhold the whole or a proportion of part of the week's salary?

My Lords, the penetrating analysis of the authorities undertaken by my noble and learned friend Lord Oliver of Aylmerton and the reasoning he bases on that analysis seem to me to lead convincingly to an affirmative answer to this question. I do not believe that any wider question relating to the effect on contractual rights and obligations of industrial action designed to put pressure on employers falls for consideration. Industrial action can take many different forms and there are a variety of options open to an employer confronted by such action. In particular I should, for my part, have preferred to express no opinion on questions arising in the case of an employee who deliberately "goes slow" or otherwise does his work in a less than satisfactory way, when the employer nevertheless acquiesces in his continuing to work the full number of hours required under his contract. There may be no single, simple principle which can be applied in such cases irrespective of differences in circumstances. But I find it difficult to understand the basis on which, in such a case, the employee in place of remuneration at the contractual rate would become entitled to a quantum meruit. This would presuppose that the original contract of employment had in some way been superseded by a new agreement by which the employee undertook to work as requested by the employer for remuneration in a reasonable sum. This seems to me to be contrary to the realities of the situation.

I would allow the appeal

I have had the advantage of reading in draft the speeches prepared by my noble and learned friends, Lord Templeman and Lord Oliver of Aylmerton. I agree that for the reasons which they give the appeal should be allowed. Like my noble and learned friend, Lord Oliver of Aylmerton, however, I should prefer to reserve my opinion on the question whether an employee engaged in certain kinds of industrial action may be entitled to claim remuneration on a quantum meruit basis for work actually done.

For the reasons so convincingly expressed by my noble and learned friends Lord Templeman and Lord Oliver of Aylmerton in their speeches, which I have had the privilege of reading in draft, I agree that the plaintiff's action was rightly dismissed by the trial judge. It was rightly dismissed because in an action by an employee to recover his pay it must be proved or admitted that the employee worked or was willing to work in accordance with his contract of employment, or that such service as was given by the employee, if falling short of his contractual obligations, was accepted by the employer as a sufficient performance of his contract. I leave out of account a failure to work or work efficiently as a result of illness or other unavoidable impediment, to which special considerations apply.

If an employee offers partial performance, as he does in some types of industrial conflict falling short of a strike, the employer has a choice. He may decline to accept the partial performance that is offered, in which case the employee is entitled to no remuneration for his unwanted services, even if they are performed. That is the instant case. Or the employer may accept the partial performance. If he accepts the partial performance as if it were performance which satisfied the terms of the contract, the employer must pay the full wage for the period of the partial performance because he will have precluded or estopped himself from asserting that the performance was not that which the contract required. But what is the position if the employee offers partial performance and the employer, usually of necessity, accepts such partial performance, the deficient work being understood by the employer and intended by the employee to fall short of the contractual requirements and being accepted by the employer as such? There are, as it seems to me, two possible answers. One possible answer is that the employer must pay the full wage but may recover by action or counterclaim or set-off damages for breach of contract. The other possible answer is that the employee is only entitled to so much remuneration as represents the value of the work he has done, i.e. quantum meruit. My noble and learned friend Lord Templeman prefers the latter solution, and so do I. My reason is this. One has to start with the assumption that the employee sues for his pay; the employer is only bound to pay the employee that which the employee can recover by action. The employee cannot recover his contractual wages because he cannot prove that he has performed or ever intended to perform his contractual obligations. If wages and work are interdependent, it is difficult to suppose that an employee who has voluntarily declined to perform his contractual work can claim his contractual wages. The employee offers partial performance with the object of inflicting the maximum damage on the employer at the minimum inconvenience to himself. If, in breach of his contract, an employee works with the object of harming his employer, he can hardly claim that he is working under his contract and is therefore entitled to his contractual wages. But nevertheless in the case supposed the employee has provided some services, albeit less than the contract required, and the employer has received those (non-contractual) services; therefore the employer must clearly pay something - not the contractual wages because the contractual work has deliberately not been performed. What can he recover? Surely the value of the services which he gave and which the employer received, i.e. quantum meruit.

My Lords, some of my conclusions travel outside the ambit of this case. The fact that they are obiter does not deter me from expressing them. I express my thoughts in the hope that they may, perhaps, be of some assistance to those who seek a correct approach to the rights of the parties in the common case of industrial action which falls short of a withdrawal of labour.

My Lords, I would allow this appeal.

The respondent plaintiff, is the superintendent registrar of births, deaths and marriages for the district of Wakefield. The plaintiff was appointed by the appellant defendants, Wakefield Metropolitan District Council. The plaintiff is paid a salary by the council, and he works a 37-hour week. One of the most important functions of the plaintiff as superintendent registrar is to conduct civil wedding ceremonies, and the most popular time for such weddings is Saturday morning when the registry office provided by the council is open for three hours between nine o'clock and midday. On instructions from his trade union, N.A.L.G.O., the plaintiff by way of industrial action, refused to conduct weddings on Saturday morning. The object of the union was, by inconveniencing the public, to obtain publicity and support for the campaign conducted by the union in the interests of its members for a higher scale of salary to be paid to superintendent registrars. The plaintiff remained willing to work a 37-hour week and to work on Saturday but he refused to conduct weddings on Saturday. By a letter dated 8 October 1981, the council:

"made it clear to the registration officers that whilst ever they are not prepared to undertake the full range of their duties on...