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Remedies for Breach of the Contract of Employment

Published online by Cambridge University Press:  16 January 2009

K. D. Ewing
K. D. Ewing
Affiliation:
Professor of Public Law.King's College.London.
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Extract

Wallie Nangle was an executive officer in the Lord Chancellor's Department. In November 1989, it was alleged that he had sexually harassed a female colleague. Following an investigation in which the complaint was upheld, Mr. Nangle was transferred to another department with a loss of increments for 12 months. This decision was upheld after an appeal to the permanent secretary in the department, though the loss of increments was reduced from 12 to three months. Alleging that these decisions had been taken in breach of the rules of natural justice and with procedural impropriety Nangle sought judicial review. But the application failed, with the Divisional Court holding that despite his status as a civil servant, the plaintiff was engaged under a contract of service and that he should seek relief in contract rather than public law to remedy any loss which he had suffered.1 The question which arose in this case was precisely what remedies could Nangle secure in private law? He might recover damages for any loss of increments if the employer had in fact failed to comply with the terms of the disciplinary code. But it is difficult to see what contractual remedy would have been available at the time against the Crown to restrain a disciplinary transfer on the ground that the disciplinary proceedings were conducted in breach of the rules of natural justice, that is to say in breach of rules applying more usually in public law which the courts have shown little desire to apply in the context of employment.

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Articles
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The Cambridge Law Journal , Volume 52 , Issue 3 , September 1993 , pp. 405 - 436
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Copyright © Cambridge Law Journal and Contributors 1993

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References

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68 Though this is not to say that all applications succeed. See MacPherson v. London Borough of Lambeth [1988] I.R.L. 470Google Scholar, distinguishing Hughes.

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80 Ibid.

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85 Emphasis added. The interlocutory injunction was granted in addition to permanent relief granted in the same case. See Part VII below. There were clearly special circumstances in the Jones case, though there is a tendency to see all the cases in this area as somehow special.

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91 See Speakman v. City of Calgary (1908) 9 W.W.R. 264, 265Google Scholar cited in Creighton, W.B., Ford, W.J. and Mitchell, R.J., op. cit. note 6 above, p. 227Google Scholar. See also McCarthy v. Windeyer (1926) 26 S.R.(N.S.W.) 29.Google Scholar

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106 Cf. Freedland, M.R., op. cit. note 24 above, where it is noted that in the case of contracts of indefinite duration not terminable by notice “there is no natural terminus ad quem short of the retirement date of the employee by reference to which lo limit the damages for wrongful dismissal”. The same author acknowledges, however, that “it is uncertain how damages are to be assessed in that situation” (p. 252).Google Scholar

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108 Ibid., at 295.

109 Ibid., at 296.

110 Ibid. Emphasis in original.

111 Ibid.

112 Ibid.

113 [1957] 1 W.L.R. 594.Google Scholar

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115 (1988)80 A.L.R. 455.Google Scholar

116 For an account of the Australian system, sec Creighton, B. and Stewart, A., Labour Law. An Introduction (Sydney 1990), csp. chs. 3–5.Google Scholar

117 For a full account of Gregory v. Philip Morris Ltd. see Naughton, R. and Stewart, A., “Breach of Contract Through Unfair Termination: The New Law of Unfair Dismissal” (1988) 1 Australian Journal of Labour Law 247.Google Scholar

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121 Bostik (Australia) Ply. Ltd. v. Gorgevski (1991) 39 I.R. 229Google Scholar; (1992) 41 I.R. 452Google Scholar. See Creighton, W.B., Ford, W.J., and Mitchell, R.J., op. cit. note 6 above, pp. 261–263.Google Scholar

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125 See now Trade Union and Labour Relations (Consolidation) Act 1992, s. 221.

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131 [1991] I.C.R. 514, 522.Google Scholar

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133 See also Jones v. Lee [1980] I.C.R. 310Google Scholar and Jones v. Gwent C.C. [1992] I.R.L.R. 521Google Scholar, discussed in Part VII below. But cf. Ali v. Southwark L.B.C. [1988] I.C.R. 567, 582Google Scholar: “The court will intervene by way of injunction in an employment case to restrain dismissal only where it is satisfied that the employer still retains confidence and trust in the employee or, if he claims to have lost such trust and confidence, does so on some irrational ground“.

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135 See Hughes v. London Borough of Southwark [1988] I.R.L.R. 55Google Scholar; and Robb v. Hammersmith L.B.C. [1991] I.C.R. 514.Google Scholar

136 [1987] I.C.R. 737Google Scholar; affd [1988] I.C.R. 842.Google Scholar

137 [1991] I.C.R. 514.Google Scholar

138 [1990] I.C.R. 291.Google Scholar

139 [1991] I.R.L.R. 286.Google Scholar

140 [1985] I.C.R. 590.Google Scholar

141 [1988] I.R.L.R. 55.Google Scholar

142 [1991] I.C.R. 514.Google Scholar

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146 [1991] I.C.R. 514.Google Scholar

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149 [1992] I.R.L.R. 521Google Scholar. See also Kenny v. South Manchester College [1993] I.R.L.R. 265 (on the Acquired Rights' Directive, 77/187).Google Scholar

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151 Even under the extended ministerial powers in the Employment Protection (Consolidation) Act 1978, s. 131, industrial tribunals will not have the jurisdiction to grant anything like the range of remedies necessary to deal with all the problems in this field. In any event the currently serious problem of overload in the industrial tribunals does not make the tribunals an attractive prospect for those seeking speedy relief. See Daily Telegraph, 14 08 1993, p. 4Google Scholar (“Tribunals feel strain of extra workload”). It remains to be seen whether the county courts (with their extended jurisdiction) will be an appropriate forum for this work. Sec County Courts Act 1984, ss. 15 and 38, as amended by the Courts and Legal Services Act 1990 and the High Court and County Courts Jurisdiction Order, S.I. 1991 No. 724. In view of the complex substantive and procedural issues involved, the devolving of work to the county courts will still be costly for litigants.