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⁴ Scally v. Southern Health and Social Services Board [1991] 4 All E.R. 563.Google Scholar See (1992) 21 I.L.J. 135.Google Scholar

⁵ See Bliss v. South East Thames R.H.A. [1987] I.C.R. 700.Google Scholar

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⁷ Trade Union Reform and Employment Rights Act 1993, s. 26, implementing EC Directive 91/533 on “An Employer's Obligation to Inform Employees of the Conditions Applicable to the Contract or Employment Relationship". For comment, see Clark, J. and Hall, M. (1992) 21 I.L.J. 106.Google Scholar

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¹² For background, see Official Report, Standing Committee F, 2 Feb. 1993, col. 668. But note that “legal representation is not required and legal aid will not be available” (ibid., col. 675).

¹³ See Deb, H.L.. vol. 544, col. 815 (30 March 1993).Google Scholar

¹⁴ A draft order to this effect was published in 1989 but never proceeded with, allegedly because “defects in the order-making power were discovered" which required primary legislation to remedy. See Deb, H.L.. vol. 544, col. 813 (30 March 1993)Google Scholar. See further Ewing, K.D., “Job Security and the Contract of Employment” (1989) 18 I.L.J. 127Google Scholar. The Government does, however, now seem seriously intent on invoking the s. 131 power. See Deb, H.L.. vol. 544, col. 813 (30 March 1993).Google Scholar

¹⁵ This is a step which has been advocated from the bench for almost 20 years. See Wood v. Leeds Area Health Authority (Training) [1974] I.C.R. 535Google Scholar; Evenden v. Guildford City Association Football Club Ltd. [1974] I.C.R. 554Google Scholar; Treganowan v. Robert Knee [1975] I.C.R. 405Google Scholar; Secretary of State for Employment v. Globe Elastic Thread Co. Ltd. [1980] A.C. 506Google Scholar; Barlow v. Whittle [1990] I.C.R. 270Google Scholar; Delaney v. Staples [1991] 2 Q.B. 47 (C.A.)Google Scholar. In Delaney v. Staples [1991] 1 All E.R. 687Google Scholar Lord Browne-Wilkinson noted that the present law was “untidy and unsatisfactory” in the sense that “On any dismissal, the summary procedure of the industrial tribunal under the [Wages] Act will be exercisable in relation to unpaid wages (in the ordinary sense), holiday pay, commission, maternity leave etc. but claims relating to the failure to give proper notice will continue to have to be brought in the county court”.

¹⁶ Delaney v. Staples [1992] 1 All E.R. 944, 952.Google Scholar

¹⁷ See Delaney v. Staples [1991] I.C.R. 331, 341 (Nicholls, L.J.)Google Scholar. See also Richard v. P.B. Glass Supplies Ltd. [1990] I.C.R. 150.Google Scholar

¹⁸ Howard v. Pickford Tool Co. Lid. [1951] 1 K.B. 417, 421.Google Scholar

¹⁹ [1981] Ch. 448Google Scholar. See [1981] C.L.J. 33Google Scholar; (1981) 44 M.L.R. 448Google Scholar; (1981) 10 I.L.J. 50.Google Scholar

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²³ McMullen, J., “A Synthesis of the Mode of Termination of Contracts of Employment” [1982] C.L.J. 110CrossRefGoogle Scholar. See also Elias, P., “The Structure of the Employment Contract” (1982) C.L.P. 95, at p. 110Google Scholar. And see generally Smith, I.T. and Wood, J.C., Industrial Law (4th ed., London1989), pp. 214–218.Google Scholar

²⁴ Gunton v. Richmond-upon-Thames L.B.C. [1981] Ch. 448Google Scholar, per Shaw, L.J. at 460Google Scholar. The matter is discussed effectively in Freedland, M.R., The Contract of Employment (Oxford 1976), pp. 292–300.Google Scholar

²⁵ The leading cases supporting the automatic theory of termination include Vine v. National Dock Labour Board [1956] 1 Q.B. 658, 674Google Scholar; [1957] A.C. 488, 500Google Scholar; Francis v. Kuala Lumpur Councillors [1962] 1 W.L.R. 1411, 1417Google Scholar; Denmark Productions Ltd. v. Boscobel Productions Ltd. [1969] 1 O.B. 699Google Scholar; Sanders v. Ernest A. Neale Ltd. [1974] I.C.R. 565.Google Scholar For a convincing critique of this view, see Collins, H., Justice in Dismissal (Oxford 1992), p. 243.CrossRefGoogle Scholar

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³² Ibid., at 34-35.

³³ Ibid., at 35.

³⁴ [1988] I.C.R. 29.Google Scholar

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³⁶ Ibid., at 34.

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⁴² Dietman v. Brent L.B.C. [1987] I.C.R. 737, at 753.Google Scholar

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⁴⁶ See also Automatic Fire Sprinklers Pty. Ltd. v. Watson (1946) 72 C.L.R. 435Google Scholar. For a thoughtful account of these cases, see Macken, J.J., McCarry, G. and Sappideen, C., The Law of Employment (3rd ed., Sydney 1990), pp. 148–153.Google Scholar

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⁵¹ Stevenson v. URTU [1977] 2 All E.R. 941, 949Google Scholar: a “strange case”, per Lord Wedderburn, op. cit. note 2 above, p. 164.Google Scholar

⁵² [1983] 1 W.L.R. 23.Google Scholar

⁵³ R. v. East Berkshire Health Authority, ex pane Walsh [1985] Q.B. 152Google Scholar. See also R. v. Derbyshire C.C., ex parte Noble [1990] I.C.R. 808.Google Scholar

⁵⁴ [1983] 1 W.L.R. 23Google Scholar. See (1983) 12 I.L.J. 43Google Scholar and Wedderburn, Lord, op. cit., pp. 163–164 and 170.Google Scholar

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⁵⁶ See above, p. 405. The difficulties are compounded by the fact that at the time injunctive relief would not have been available against the Crown. See R. v. Secretary of State for Transport, exparte Factortame Ltd. [1990] 2 A.C. 85Google Scholar. See now M. v. Home Office [1993] 3 All E.R. 537.Google Scholar

⁵⁷ [1972] 1 W.L.R. 307.Google Scholar

⁵⁸ [1972] Ch. 305Google Scholar. See Smith, I.T. and Wood, J.C., op. cit. note 23 above, pp. 226–228Google Scholar, and Wedderburn, Lord, op. cit. note 2 above, p. 166Google Scholar. See also (1972) 35 M.L.R. 310Google Scholar, and (1972) 1 l.L.J. 37.Google Scholar

⁵⁹ At 320 (Sachs L.J.).

⁶⁰ [1975] 1 W.L.R. 482Google Scholar. See [1975] C.L.J. 212.Google Scholar

⁶¹ Ibid., at 493.

⁶² [1972] Ch. 305.Google Scholar

⁶³ Ibid., at 316.

⁶⁴ Ibid., at 321. Cf. (1972) 1 I.L.J. 37Google Scholar where it is noted that the decision “represents a major step towards the recognition of property in employment”. For a more cautious view, see M.R. Freedland, op. cit. note 24 above, p. 278.Google Scholar

⁶⁵ Besides the cases to be discussed, other important cases are Keir v. Hereford and Worcester C.C. (1985) 84 L.G.R. 709Google Scholar, and Gibbons v. Associated British Ports [1985] I.R.L.R. 377Google Scholar (both dealing with declaratory relief). See also Lee v. GEC Plessey Telecommunications [1993] I.R.L.R. 383.Google Scholar

⁶⁶ [1988] I.C.R. 176Google Scholar. See [1989] C.L.J. 28.Google Scholar

⁶⁷ [1988] I.R.L.R. 55.Google Scholar

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.

⁶⁹ [1988] I.R.L.R. 55, 56.Google Scholar

⁷⁰ [1988] I.C.R. 176, 196Google Scholar. Cf. Nicholls, L.J. at 199.Google Scholar

⁷¹ To such an extent that one writer refers to the “well-established exception to the alleged rule that enforcement of contracts of employment is not possible”: see Pitt, G., Employment Law (London 1992), p. 174.Google Scholar

⁷² [1985] I.C.R. 590. Also important is Jones v. Lee [1980] I.C.R. 310Google Scholar, where an injunction was granted to a school teacher on the basis that “the procedure adopted for his dismissal was not the procedure for which his contract provided” (Roskill L.J., at 321). The decision rested to some extent on earlier decisions in the education field, including Crisp v. Holden (1910) 54 S.J. 784Google Scholar and Smith v. Mcnally [1912] 1 Ch. 816.Google Scholar These have been referred to as cases where statute or regulation forbid dismissal except with the permission of a third party, a permission which had not been granted in any of these three cases. (The point is most fully explored in Crisp). It remains the case nevertheless that Jones v. Lee was treated by the Court of Appeal as a case which was “not about statutory power at all. It is about a contract between the schoolmaster and the school managers” (per Cumming Bruce, L.J., at p. 321Google Scholar). Cf. Freedland, M.R., op. cit. note 24 above, pp. 288–289Google Scholar. Cf. also Lord Wedderburn, , op. cit. note 2 above, p. 167.Google Scholar

⁷³ [1984] I.C.R. 590, 604.Google Scholar It has been suggested that there was “a public law background” to Irani. See Wedderburn, Lord, op. cit. note 2 above, p. 167.Google Scholar

⁷⁴ [1972] Ch. 305.Google Scholar

⁷⁵ [1991] I.C.R. 514.Google Scholar

⁷⁶ Note also that confidence was not raised as an issue in Jones v. Lee [1980] I.C.R. 310Google Scholar despite being treated by the Court of Appeal as a straightforward contract case. But cf. Ali v. Southwark L.B.C. [1988] I.C.R. 567 where the question of confidence played a prominent part in the court's refusal to grant injunctive relief.Google Scholar

⁷⁷ There is perhaps a fourth category of cases, namely those where the employee has been dismissed without good reason and without adequate notice. Hill v. Parsons & co. Ltd. [1972] Ch. 305Google Scholar is an example of such a case, which singles it out as an even more exceptional decision. See now Marsh v. National Autistic Society [1993] I.C.R. 453.Google Scholar

⁷⁸ [1990] I.C.R. 291.Google Scholar

⁷⁹ Ibid., at p. 307.

⁸⁰ Ibid.

⁸¹ Ibid.

⁸² [1957] 1 W.L.R. 594Google Scholar. For comments see (1957) 12 N.I.L.Q. 103Google Scholar and (1957) 73 L.Q.R. 281Google Scholar. See also Elias, P., op cit. note 23 above, pp. 109–110Google Scholar. It has been pointed out that the “remarkable feature of the decision is that their Lordships apparently regarded the employment as being based on contract only and did not refer to any statutory status. In fact (although this was not referred to in the speeches of their Lordships) the plaintiffs terms of employment had to be approved by the Northern Ireland Minister of Health and Local Government. This may indicate that the decisive factor was that the plaintiff held a public post which carried with it a permanent status” (Hepple and O'Higgins, Employment Law, 4th ed., by Hepple, B.A. (London 1981), p. 269)Google Scholar. The decision has been considered in very few cases. See Malins v. Post Office [1975] I.C.R. 60 where it was distinguished at pp. 66–70Google Scholar, and Ivory v. Palmer [1975] I.C.R. 340.Google Scholar

⁸³ There are a number of cases in Australia in which the courts have said that they are in principle willing to grant equitable relief to restrain a dismissal for which there is no authority under the contract, as where it amounts to a breach of an unfair dismissals clause which has been incorporated into contracts of employment from an industrial award. See Turner v. Australasian Coal and Shale Employees' Federation (1984) 55 A.L.R. 635Google Scholar (on which see (1985) 14 I.L.J. 248)Google Scholar; and Gregory v. Philip Morris Ltd. (1988) 80 A.L.R. 455Google Scholar. But see Creighton, W.B., Ford, W.J. and Mitchell, R.J., op. cit. note 6 above, p. 287.Google Scholar

⁸⁴ [1992] I.R.L.R. 521Google Scholar. But cf. now Page v. Hull University Visitor [1993] 1 All E.R. 97Google Scholar where Lord Slynn (at 116–7) appeared most reluctant to accept that the employer in that case had placed restrictions on the permitted grounds for dismissal. The absence of such a restriction was said to be “no more curious than the alternative”. On the traditional unwillingness of the courts to enforce such provisions, see Davis v. Foreman [1894] 3 Ch. 654Google Scholar. See also Batt, F.R., The Law of Master and Servant, 4th ed., by Vaines, J.C. (London 1950), p. 210.Google Scholar

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.

⁸⁶ [1985] I.C.R. 590.Google Scholar

⁸⁷ [1991] I.C.R. 514.Google Scholar

⁸⁸ This was true also where there was a breach of a procedural term of the contract. See Tomlinson v. The London, Midland and Scottish Rly. Co. [1944] 1 All E.R. 537Google Scholar, per Cassels, J. at p. 538.Google Scholar

⁸⁹ Gunton v. Richmond- upon-Thames L.B.C. [1981] Ch. 448, 473Google Scholar. On damages generally, see McGregor on Damages, 15th ed., by McGregor, Harvey (London 1988)Google Scholar, ch. 27. See also Hepple and O'Higgins, op. cit. note 82 above, pp. 269–270.Google Scholar

⁹⁰ Gunton, ibid.

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

⁹² See Hill v. C.A. Parsons [1972] Ch. 305, 313: “for a professional man of his standing and … length of service, reasonable notice would be at least six months, and may be twelve months”.Google Scholar

⁹³ [1909] A.C. 488.Google Scholar

⁹⁴ Cox v.Philips Industries Ltd. [1976] 1 W.L.R. 638.Google Scholar

⁹⁵ Bliss v. South East Thames R.H.A. [1987] I.C.R. 700Google Scholar. See also O'Laoire v. Jacket Ltd. (No. 2) [1991] I.C.R. 718, 730–731.Google Scholar

⁹⁶ See also Vorvis v. Insurance Corporation of British Columbia (1989) 58 D.L.R. (4th) 193Google Scholar where the Supreme Court of Canada by a majority favoured a modified version of the Addis rule in preference to an approach similar to that adopted by Lawson, J. in Cox. (Cf. Whelan v. Waitaki Meats Ltd. [1991] 2 N.Z.L.R. 74 where the High Court of New Zealand refused to follow Addis and awarded damages for mental distress, anxiety, humiliation, loss of dignity and injury to feelings.)Google Scholar

⁹⁷ [1981] Ch. 448.Google Scholar

⁹⁸ Ibid.. 470.

⁹⁹ Ibid. See also Dietman v. Brent L.B.C. [1987] I.C.R. 737.Google Scholar

¹⁰⁰ [1957] 1 W.L.R. 594.Google Scholar

¹⁰¹ See also Ivory v. Palmer [1975] I.C.R. 340 where it is acknowledged that “There is no doubt that a person may be employed on a contract of service for life, even though there is no undertaking on his part to continue in the employment of the employer” (Cairns L.J. at 344).Google Scholar

¹⁰² [1957] I W.L.R. 594, 612.Google Scholar

¹⁰³ Ibid., at 613. See also (1957) 12 N.I.L.Q. 103. at p. 105.Google Scholar

¹⁰⁴ lbid.. at 612.

¹⁰⁵ Ibid., at p. 609 per Lord Keith of Avonholm (in his dissenting speech) where he said that “specific performance of such a contract could not, of course, be enforced, but refusal by the board to continue to employ the appellant would be a breach of contract sounding in damages” (emphasis added).

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

¹⁰⁷ [1991] I.R.L.R. 286.

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

¹¹⁴ [1985] I.C.R. 590.Google Scholar

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

¹¹⁸ The reason for the court's decision was essentially that reinstatement of the plaintiff into his employment would cause industrial disruption. Cf. Hill v. C.A. Parsons & Co. Ltd. [1972] Ch. 305.Google Scholar

¹¹⁹ (1988) 80 A.L.R. 455, 483.Google Scholar

¹²⁰ As explained subsequently in Wheeler v. Philip Morris Ltd. (1989) 97 A.L.R. 282Google Scholar. See McCallum, R.C., Pittard, M.J. and Smith, G.F., Australian Labour Law Cases and Materials (2nd. ed., Sydney 1990), pp. 152–153.Google Scholar

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

¹²² Cf., however, Jakeman v. South West Thames R.H.A. [1990] I.R.L.R. 62Google Scholar which is an important reminder of the greater difficulty in obtaining mandatory rather than prohibitory relief. See also MacPherson v. London Borough of Lambeth [1988] I.R.L.R. 470Google Scholar. Note also Ali v. Southwark L.B.C. [1988] I.C.R. 567Google Scholar which is an important reminder of the reluctance of the courts to intervene before the completion of a disciplinary hearing. Cf. McGoldrick v. London Borough of Brent [1987] I.R.L.R. 67.Google Scholar

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

¹²⁶ [1979] I W.L.R. 1294Google Scholar. See also Cayne v. Global Natural Resources plc. [1984] 1 All E.R. 225.Google Scholar

¹²⁷ [1988] I.R.L.R. 55.Google Scholar

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¹³² Ibid.

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¹³⁴ [1972] Ch. 305.Google Scholar

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