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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> SG & R Valuation Service Co v Boudrais & Ors [2008] EWHC 1340 (QB) (12 May 2008) URL: https://www.bailii.org/ew/cases/EWHC/QB/2008/1340.html Cite as: [2008] IRLR 770, [2008] EWHC 1340 (QB) |
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QUEEN'S BENCH DIVISION
Strand London WC2A 2LL |
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B e f o r e :
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SG & R VALUATION SERVICE CO | Claimant | |
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BOUDRAIS & OTHERS | Defendants |
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PO Box 1336, Kingston-Upon-Thames KT1 1QT
Tel No: 020 8974 7300 Fax No: 020 8974 7301
Email Address: Tape@merrillcorp.com
(Official Shorthand Writers to the Court)
Mr J Davies QC appeared on behalf of the First and Third Defendants.
Mr S Hornett appeared on behalf of the Fourth and Fifth Defendants.
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Crown Copyright ©
Background
"The idea is to use 31st March to tidy up our offices and steel (sic) as much as possible…"
One of the unedifying features is the extent to which colleagues are unwittingly enlisted in the acquisition of contact information and other information and then, having been duped, disparaged behind their backs.
"The first defendant indicated that you would like to know the projects that I am currently working on for HVS and what could be brought with us so I attach a spreadsheet."
The first defendant, a short time later, adds a list of his own, which he says he has been "sitting on". Then there is the solicitation of other staff to join the first and second defendants in an "exodus" to the fourth and fifth defendants which is also evidenced by the email traffic and confirmed in the first defendant's affidavit. That is coupled with the sending to the fourth and fifth defendants of information about the claimant's employees. Thus, on 12th March the first defendant sends a detailed list of employees, together with position, salaries and bonuses to the fourth and fifth defendants, and comments that "The three of us are happy with it". Further, there is the email which is sent by the first defendant to the fourth and fifth defendants and copied to the second and third defendants on 24th March which refers to feedback from a discussion of the previous Thursday and includes the following comment:
"One payment for bringing working tools and know-how. £60,000 each."
The comment opposite this entry is:
"Agreed with thanks. You have also mentioned that this could be payable off-shore. Some of us will be interested in doing this. Any advice which could be provided would be welcome."
Power to send on garden leave?
(a) Express contractual power
(b) Right to work and its qualifications
(i) Right to work.
"It is true that a contract of employment does not necessarily, or perhaps normally, oblige the master to provide the servant with work. Provided I pay my cook her wages regularly she cannot complain if I choose to take any or all of my meals out. In some exceptional cases there is an obligation to provide work. For instance, where the servant is remunerated by commission, or where (as in the case of an actor or singer) the servant bargains, among other things, for publicity, and the master, by withholding work, also withholds the stipulated publicity: see, for instance, Marbe v. George Edwardes (Daly's Theatre), Ld.; but such cases are anomalous, and the normal rule is illustrated by authorities such as Lagerwall v. Wilkinson, Henderson & Clarke, Ld. (2) and Turner v. Sawdon & Co., where the plaintiffs (a commercial traveller and a salesman respectively, retained for a fixed period and remunerated by salary) were held to have no legal complaint so long as the salary continued to be paid, notwithstanding that owing to their employers' action they were left with nothing to do" (at 650).
That case involved the chief sub-editor of a specific newspaper, the Sunday Referee, and Asquith J held that that employee had the right to work. Three-quarters of a century on the language and social stratification implicit in that judgment does not resonate well. Nonetheless, there are authorities which confer on certain categories of employee the right to work, actors, singers, newspaper chief sub-editors, but not on others, commercial travellers, salespersons and domestic cooks.
(ii) Qualifications to the right to work
"He submits that if the job is there to be done and the employee was appointed to do it and is ready and willing to do so then the employer must permit him to do so" (at 299H-300A).
This notion of the employee's right to work turning on whether he or she is ready and willing to work is supported by the highest authority. In Miles v Wakefield Metropolitan Borough Council [1987] AC 539 Lord Oliver of Aylmerton, in a passage with which the other Law Lords agreed, said:
"[A] plaintiff in an action for remuneration under a contract of employment must, in my judgment, assume the initial burden of averring and proving his readiness and willingness to render the services required by the contract (subject, no doubt, to any implied term exonerating him from inability to perform due, for instance, to illness)."
"absent an express provision entitling an employer to withhold the provision of work (or an implied one) an employer must not unreasonably withhold work when there is work available to be done".
Whatever way the principle is expressed, it focuses on the employee's conduct. That must be serious enough to exhibit a lack of readiness and willingness to do the work if the employee is to be denied work. Alternatively, it may be such that it is not unreasonable, to use the language of Harvey, for the employer not to provide work if it is available. There is no need to spell out the metes and bounds of the employee's behaviour which can justify this response on the part of the employer. The sort of behaviour relevant to the present case constitutes wrongdoing, with the goal of profiting from the wrong. In this area the judgement of Sir Robert Megarry VC in Thomas Marshall (Exports) Ltd v Guinle [1979] 1 Ch 227 at 243 B-C is authoritative:
"Above all, I think the courts must be astute to prevent a wrongdoer from profiting too greatly from his wrong. If without just cause a servant who has contracted to serve for a term of years refuses to do so, it is easy to see that the court is powerless to make him do what he has contracted to do: neither by decreeing specific performance nor by granting an injunction can the court make the servant perform loyally what he is refusing to do, however wrongfully… But why should the court's inability to make a servant work for his employer mean that as soon as the servant refuses to do so the court is forthwith disabled from restraining him from committing any breach, however flagrant, of his other obligations during the period of his contract? I would wholly reject the doctrine of automatic determination, whether in its wide form or in its narrowed version."
Mutual repudiatory breach
Springboard relief
Balance of convenience
"I certainly would not wish to countenance the view that any employee can snap his fingers against his employers and disregard the notice provisions and obligations in his service agreement during his period of notice" (at 169).
The fourth and fifth defendants