Mobility of Employees and Managerial Prerogative
| Published date | 01 March 1989 |
| Date | 01 March 1989 |
| Author | S. H. Foster |
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02822.x |
MAR. 19891
NOTES
OF
CASES
251
that “anyone who sells any part
of
his business equipment must sell
that part ‘in the course
of
his business.’
7721
The only possible argument in favour
of
the transposition
of
the
interpretation
of
the phrase “in the course
of
a business” from the
Unfair Contract Terms Act 1977 to the Sale of Goods Act 1979 is
one
of
symmetry but even that will not be achieved. Section
12
of
the Unfair Contract Terms Act 1977 limits consumer sales to those
where the goods are
of
a type supplied for private use or
consumption. A farmer, therefore, who buys a tractor will not be
able to argue that any exclusion clause is void on the ground that
he
is
“dealing as a consumer.” A farmer, on the other hand, who
sells a tractor will be able to argue that such a sale is not made in
the course
of
a business and as such the tractor need not be
of
merchantable quality nor fit for the purpose under the provisions
of
section
14
of
the Sale
of
Goods Act 1979. DIANE
R.
PRICE*
MOBILITY
OF
EMPLOYEES
AND
MANAGERIAL PREROGATIVE
THE
question whether, and to what extent, employees may be
required to move to another location at the behest
of
their
employer has particular significance in the context
of
modern
employment protection legislation. Such action may bring the
legislation into play in a variety
of
ways. First, a tribunal may have
to
determine whether such a request
is
in fundamental breach
of
contract, thus entitling the employee to resign and claim
“constructive dismissal.”’ Second, an issue often related to the
first, such a move may result in redundancy,2 entitling the employee
to claim a redundancy payment3 and/or to bring a claim for unfair
dismissal4 questioning the fairness
of
that dismis~al.~
In those circumstances it will be the employer’s
conlrucfuul
authority to move the employee which will determine the question
whether the employee may claim to have been constructively
dismissed, for it is now well settled that an em loyee may only
claim such a dismissal in the face
of
repudiatory
F
conduct by the
21
Ibid..
at
p.61.
Lccturcr in Law, University of Birmingham.
Within
s.55(2)(c)
of
the Employmcnt Protection (Consolidation) Act
1978
(EPCA)
which providcs that an cmploycc shall be trcatcd
as
dismissed by his cmployer
il
.
. .
(c)
thc cmployce tcrminates the contract, with
or
without noticc, in Circumstances such that
hc is cntitled
to
terminate it without noticc by reason
of
the employcr’s conduct.
*
As dcfincd by EPCA,
s.81(2).
’
By virtue
of
EPCA,
s.81(l)(a)
and calculatcd in accordance with Schcdulcs
4, 13,
and
14
of
the Act.
‘
By virtuc
of
EPCA,
s.67.
Thc gcncral
tcst
of
fairncss is laid down in EPCA,
s.57(3).
An cmployee dismissed as
rcdundant may therefore auestion the fairness
of
the employer’s decision
to
dismiss for
that reason and succccd
in’
both claims, although hc will’noi be doubly compensated in
such a casc:
s.73(9).
Such conduct may includc
a
breach
of
a fundamental tcrm
or
whcre the conduct
indicates that thc employer
is
no longcr willing
to
be bound by the csscntial terms
of
the
contract, see Lord Denning M.R. in
Wesreni
Excavaritig
(ECC)
Lard.
v.
Sharp
[1978]
I.C.R.
221
at
p.226
para. a.
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