Tom Stenner-Evans
Posted on 3 Nov 2014

Employment Law Monday Update - 3 November

Anyone who works in HR will know how quickly changes come about in Employment Law, and how hard it is to keep up with them all. With that in mind, the Michelmores Employment Team has created a weekly newsletter that encapsulates the most significant Employment Law developments of the last 7 days. The Weekly Update will be sent out around midday on Monday, so be sure to keep an eye out for it!

Injunction did not alter principle that Employee should not be compelled to work

Sunrise Brokers LLP v Rodgers [2014] EWCA Civ 1393

Background

For policy reasons, the courts will not generally order specific performance of an employment contract. Where an employer or employee commits a repudiatory breach of contract, this will not automatically bring the contract to an end. Rather, the other party will have a choice as to whether to accept the breach as bringing the contract to an end.

The case below focused on the question of whether the effect of the employee not receiving payment for a period of injunctive relief was to compel him to work.

The Facts

The Claimant had a 12 month notice period and 6 month post-termination restrictive covenants. His contract stated that he could not give notice before September 2014.

The Claimant accepted an offer of employment with one of his employer's competitors and purported to give notice to terminate his employment on 27 March 2014, stating that he was not prepared to work beyond that date. His employer refused to accept his resignation, which was in repudiatory breach of contract, and indicated that it would hold him to his notice period and post-termination covenants.

The employer sought a declaration that the contract still subsisted and an injunction requiring the Claimant to observe the terms of the contract until 16 October 2014 (having agreed to a shorter notice period). After this date, the employer sought to invoke the protection of the restrictive covenants for a period of four months. Throughout this period, the Claimant would not be paid.

The High Court granted the employer the injunction it had sought. The Court rejected the Claimant's argument that he was released from his obligations once his employer failed to pay him. It was not a breach of contract on the part of the employer because the Claimant was only entitled to be paid if he was ready and willing to work.

The Claimant appealed to the Court of Appeal.

The Decision

The Court dismissed the Claimant's appeal. The Court noted that this was not a case where the employer had invoked a garden leave clause. The issue of the Claimant's right to be paid arose from the terms of the injunctive relief itself, not the terms of the contract. Whilst it was usual for the employer to offer to pay the employee's salary when seeking injunctive relief, there was no justification for such an undertaking here.

The principle that an injunction should not be granted, where the effect would be to compel the employee to continue to work for the employer, was sound and would not be interfered with. However, it should not be assumed that non-payment will always have a compulsive effect on the employee. The Court considered the fact that the Claimant had agreed to a start date of January 2015 with the competitor, which gave the impression that he could cope without pay in the interim. It was also relevant that the Claimant had agreed to a six month post-termination restraint, during which no question of his being paid could arise. Further, the Claimant had not provided any evidence that not being paid during his notice period would cause him financial hardship.

Tips for Employers

The above case is helpful in clarifying the approach to injunctions and whether the effect will be to 'compel' the employee to work. The Court made clear that, if the employee is to argue that an injunction would effectively compel him to work, he ought to adduce evidence of the pressures he is under, but the Court would not want to encourage an elaborate examination of the employee's means and resources. The Court stated that 'sufficient information' should be provided by the employee to enable the Court to make a broad assessment of the compulsive effect.

Discrimination during Work Placements

Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust [2014] UKEAT

The Facts

The Claimant was a nursing student at Birmingham City University. As part of her course, she undertook a vocational placement at Birmingham and Solihull Mental Health NHS Foundation Trust.

The Claimant was a single mother and, due to her childcare responsibilities, could not manage the shift patterns involved in the placement, leading the Trust to withdraw it. She made a claim of indirect sex discrimination in the Employment Tribunal.

The Decision

Usually, claims for discrimination in the provision of vocational training fall within the Tribunal's jurisdiction. However, there is an exception under the Equality Act, where the training is provided through a university which 'has the power to afford access' to that training. Therefore, the Employment Tribunal did not have jurisdiction to hear a discrimination claim about a work placement which is part of a university course. If the Claimant wanted to pursue her claim, she would have to do so in the county court.

Tips for Employers

This case provides useful clarification regarding discrimination which takes place during the course of a work placement.

Sports Direct rewrite Zero-Hours Contracts

Sports Direct has recently entered into an out-of-court settlement with a former employee regarding a dispute over his zero-hours contract. As a result, the sportswear giant has agreed to re-write job advertisements and employment contracts to ensure it is clearly communicated that staff on zero hours contracts are not guaranteed work.

In addition to the above, Sports Direct has also agreed to produce clear policies on sick pay and paid holiday for those on zero hours contracts.