Geys v Société Générale is an important case of the Supreme Court which rules on the question of whether a unilateral step by one party – say, a summary dismissal by an employer - can end a contract of employment without the other party accepting that repudiation, or whether the contract does not end until the employee does or says something to indicate that he accepts that the contract is at an end. The Supreme Court, by a majority, opted for the latter.
Demotion and/or redeployment are relatively rare as potential outcomes of disciplinary procedures, not least because it would be a risky strategy to impose them without an express contractual power. Piper v Maidstone & Tunbridge NHS Trust demonstrates a pitfall for employers who do include these penalties in their disciplinary procedures.
Tamang v ACT is an illustration of the importance of careful drafting - and of the importance of not making assumptions. The case arose after a pair of security guards claimed that they had been unfairly dismissed for a TUPE-related reason after a service provision change, and that they had not been consulted about the change. They started claims against both their old employers and the new service providers, but then reached an agreement to drop their claims against the original employers, and signed settlement agreements which only named those original employers. The employees then carried on the proceedings against the new service providers, who sought to rely on the compromise agreements, arguing that they acted as a release against all the respondents.
It is a familiar scenario: after a promotion, an employee is sent a new contract to sign. It includes some new benefits, but also there are some post termination restrictions in there. The employee looks it over, perhaps, then tucks it away at the back of a drawer to deal with later, or with no intention of ever signing it. Fast forward a few years – that employee has left his job, and is working for a new employer. Can his old employer enforce those post termination restrictions, even though the employee never expressly agreed to be bound by them?
The difference between employee, self-employed and “worker” – a category somewhere between the two – is a crucial one, given that many employment protection rights depend on employment status – yet there is no single test to establish which is which.
In Ranson v Customer Systems PLC the Court of Appeal has, this summer, been looking at a key issue for employees planning to move on to a new job, or to set up on their own, and their employers – the extent of their duties of fidelity, in the absence of express terms restricting competitive activities.
Huet v Université de Bretagne Occidentale is a case referred to the ECJ from the administrative court in Rennes concerning the French equivalent of the Fixed-term Employees Regulations and makes an important practical point. The background was that Mr Huet had a series of fixed term contracts as a researcher at the Université de Bretagne Occidentale for a total period of six years; he was then given a permanent contract – but with a different title and slightly reduced pay, although his duties remained the same. He asked for his contract to be amended and brought a legal challenge when his request was refused.
When negotiating employment terms, or severance arrangements, senior managers frequently seek the protection of an indemnity from their employer from legal and other professional fees to cover the costs of being represented in proceedings arising from their actions whilst in post.
1. General Legal Position
The common law position is that a contract may only be amended in accordance with its terms and conditions and or/the consent of both parties.
Not every change however will require consent for example:
The written contract of employment does not exist in isolation:
1. Implied terms
Many terms are not expressed in contracts but are implied into the contract by either common law or statute. Employers need to be aware of the main implied terms to draft effective contracts, make appropriate management decisions and ensure they do not act in a way which may destroy the working relationship.
There are various categories of implied terms.
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