Sunrise Brokers LLP v Michael William Rodgers
| Jurisdiction | England & Wales |
| Judge | Mr Salter |
| Judgment Date | 29 July 2014 |
| Neutral Citation | [2014] EWHC 2633 (QB) |
| Docket Number | Case No: HQ14A02044 |
| Court | Queen's Bench Division |
| Date | 29 July 2014 |
[2014] EWHC 2633 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
Mr Richard Salter QC
Sitting as a Deputy Judge of the Queen's Bench Division
Case No: HQ14A02044
Mr Michael Duggan QC (instructed by Twenty Twenty Law) appeared for the Claimant
Mr Nick De Marco (instructed by Mishcon de Reya) appeared for the Defendant
Hearing dates: 24, 25, 28, 29 July 2014
Approved Judgment
I direct that pursuant to CPR PD39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Salter QC:
Introduction
In this action the Claimant ("Sunrise") seeks a declaration that the Defendant ("Mr Rodgers") remains in the employment of Sunrise, and an Order restraining Mr Rodgers from working elsewhere, both during his notice period and during the subsequent period covered by the post-termination restrictive covenants in his contract of employment. This case raises for decision the interesting and difficult issue of whether, when an employee leaves his employment without giving proper notice stating that he will never return, the employer can keep the contract of employment alive, so as to be able to enforce the employee's obligation not to work for anyone else, while simultaneously refusing to pay the employee any wages on the basis that the employee is no longer ready and willing to work for the employer.
The facts
There is little dispute about the primary facts of the case, most of which are apparent from the contemporary documents.
Sunrise is an inter-dealer broker, dealing in equity, credit, hybrid and commodity derivatives 1. Its head office is in London, but it also has offices in New York and in Asia. The majority of Sunrise's commodities business involves metals contracts, of which most are base metal futures and options, traded on the London Metal Exchange. However, since the end of 2011, Sunrise has sought to build up a business in over-the counter contracts whose underlying commodity is a precious metal.
Mr Rodgers joined Sunrise as a derivatives broker in May 2009. He had previously qualified and practised from 2005 to 2008 as a barrister in Northern Ireland, specialising in criminal cases and a small amount of chancery work. At Sunrise, Mr Rodgers began his training on equity derivative products, and thereafter specialised in European single stock derivatives. However, although he showed great promise, his broking activities in that area did not prove very profitable for Sunrise. When Sunrise decided to move into precious metals contracts in 2011, it therefore
decided to transfer Mr Rodgers to help to set up its Precious Metals Desk. Mr Rodgers worked on this desk with another broker, Mr Greg Szajman, under the supervision of the Head of Commodities, Mr Gareth Harwood. Mr Rodgers began work on launching the Precious Metals Desk in October 2011, and it eventually went "live" in February 2012.In connection with his move, Mr Rodgers signed a new contract of employment dated 21 October 2011 ("the Contract"), which was subject to English law and the jurisdiction of the Courts of England and Wales. This Contract was (relevantly) terminable by Sunrise on giving 3 months' notice, but was not terminable by Mr Rodgers until the expiration of an initial period of 3 years, and thereafter only by giving a further 12 months' notice. Clause 2.1 of the Contract provided that:
The Employer shall continue to employ the Employee and the Employee shall serve the Employer on the terms of this agreement. Your employment will continue, subject to clause 14 until terminated by (i) the Employer giving the Employee not less than one months' prior written notice during the [first 6 months from 22 nd September 2011 ], rising to three months thereafter, or (ii) the Employee giving the Employer not less than 12 months' prior written notice not to be given by the Employee before the end of [a period of 3 years from 22 September 2011 ]
By virtue of clause 22, any notice under the Contract had to be given in writing.
Other material provisions of the Contract included the following:
3. DUTIES
3.1 The Employee shall serve the Employer or any member of the SBL Group as Derivatives Broker, or such other role as the Employer considers appropriate.
3.2 During the Appointment the Employee shall:
(a) unless prevented by Incapacity, devote the whole of his time, attention and abilities to the business of the Employer;
(b) comply with all reasonable and lawful directions given to him by the Employer;
..
(d) report his own wrongdoing and any wrongdoing or proposed wrongdoing of any other employee or director of the Employer to the Board immediately on becoming aware of it;
..
(f) comply with .. the Staff Handbook that the Employer may issue from time to time.
4. PLACE OF WORK
4.1 The normal place of work of the Employee, is the Employer's offices at 40 Whitfield Street London W1, or such other place within Greater London which the Employer may reasonably require for the proper performance and exercise of his duties.
4.2 The Employer may from time to time require the Employee to work from other overseas offices of the Employer or the SBL Group, including, but not limited to New York or Hong Kong. During such periods of secondment the Employee will continue as an Employee of the Employer unless otherwise agreed by the parties.
4.3 The Employee agrees to travel on any business of the Employer (both within the United Kingdom and abroad) as may be necessary for the proper performance of his duties under the Appointment
5. HOURS OF WORK
5.1 The normal working hours of the Employee shall be 7.30am to 6pm on Mondays to Fridays and such hours as are necessary for the proper performance of his duties. The Employee acknowledges that he shall not receive further remuneration in respect of such additional hours.
6. SALARY
6.1 The Employee shall be paid an initial salary of £60,000 Per annum. The salary paid to the Employee shall accrue from day to day and be payable monthly in arrears on or about the 1st of each month directly into his bank or building society.
6.2 The salary paid to the Employee shall be reviewed by the Board annually, the first such review to take place on the first anniversary of [22 September 2011 ]. The Employer is under no obligation to award an increase following a salary review. There will be no review of the salary after notice has been given by either party to terminate the Appointment
BONUS
6.3 The Employer may in its absolute discretion pay you a bonus of such amount, at such intervals, and subject to such conditions as the Employer may in its absolute discretion determine from time to time.
Any bonus payment to you shall be purely discretionary and shall not form part of your contractual remuneration under this agreement. If the Employer makes a bonus payment to you it shall not be obliged to make subsequent bonus payments.
9. HOLIDAYS
9.1 The Employee shall be entitled to 25 days' holiday in each holiday year together with the usual public holidays in England and Wales ..
9.2 .. The Employee shall not without the consent of Board carry forward any accrued and unused holiday entitlement to a subsequent holiday year, nor receive any payment in lieu in respect of such entitlement.
I0. INCAPACITY
10.1 The. Employer does not operate a policy for sick pay. Amy payments made to the Employee, save for any statutory sick pay to which the Employee maybe entitled, are entirely at the discretion of the Employer.
..
11. OUTSIDE INTERESTS
11.1 Subject to clause 11.2, during the Appointment the Employee shall not except as a representative of the Employer or with the prior written approval of the Board, whether paid or unpaid, be directly or indirectly engaged, concerned or have any financial interest in any capacity in any other business, trade, profession or occupation (or the setting up of any business, trade profession or occupation).
11.2 Notwithstanding clause 11.1, the Employee may hold an investment by way of shares or other securities of not more than 1% of the total issued share capital of a company (being a company which is listed or dealt in on a recognised stock exchange) where such company does not carry on a business similar to or competitive with any business for the time being carried on by the Employer.
..
12. CONFIDENTIAL INFORMATION
12.1 Without prejudice to his common law duties, the Employee shall not (except in the proper course of his duties, as authorised or required by law or as authorised by the Board, either during the Appointment or at any time after termination of the Appointment (howsoever arising):
(a) use any Confidential Information; or
(b) make or use any [copies or records of any Confidential Information]; or
(c) disclose any Confidential Information to any person, company or other organisation whatsoever.
12.2 The Employee shall be responsible for protecting the confidentiality of the Confidential Information and shall:
(a) use his best endeavours to prevent the use or communication of any Confidential Information (except in the proper course of his duties, as required by law or as authorised by the Employer); and
(b) inform the Employer immediately upon becoming aware, or suspecting, that any such person, company or organisation knows or has used any Confidential Information ..
12.3 All Confidential Information and Copies shall be the property of the Employer and shall be handed over to the Board by the Employee on the termination of the Appointment, or at the request of the Employer, at any time during the Appointment
..
14. TERMINATION
14.1 Subject to clause 14.2, it is agreed by the Employer and the...
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