I don't think that is right, so you can't claim your salary just be being ready to work, see Lord Wilson at [79] for the majority
"Ever since then the law has been clear that, save when, unusually, a contract
of employment specifies otherwise, the mere readiness of an employee to resume
work, following a wrongful dismissal which he has declined to accept, does not
entitle him to sue for his salary or wages. “He cannot”, as Salmon LJ said in
Denmark Productions Ltd v Boscobel Productions Ltd [1969] 1 QB 699, 726, “sit
in the sun...”. The law takes the view that it is better for the employee (as well, of
course, as for the employer) that his claim for loss of wages or salary should be
confined to a claim for damages and therefore be subject to his duty to mitigate
them by taking all reasonable steps to find other work. This principle is not
without its critics. In Boyo v Lambeth London Borough Council [1994] ICR 727,
747 Staughton LJ observed that, unconstrained by authority, he would not have
accepted it; and, in his dissenting judgment in Cerberus Software Ltd v Rowley
[2001] ICR 376, Sedley LJ suggested, at p 386, that it was “one of the great
unresolved questions of employment law”. But, even if the question can be said to
be unresolved, this court is not invited to resolve it. The facts of this appeal leave
no room for an attack on the principle. It has added to the making of a contract of
employment into a special case – but, again, only in terms of remedies. "
There won't be a breach of contract by an employer who refuses to provide an employee with any work, provided that he continues to pay him, because what the employee wants is the pay not the work (save where, as you say, the employee needs the work for
reasons other than getting paid).
Rob
From: Osuji, Onyeka [O.K.Osuji@exeter.ac.uk]
Sent: 30 January 2013 16:48
To: lionel.smith@mcgill.ca; Robert Stevens; obligations@uwo.ca
Subject: RE: Termination for Breach
Dear Rob,
The majority seemed to merely confirm the view that consideration in employment contracts is different from other 'many contracts'. The employee's consideration is the
willingness to work and not the work itself. If the employee is receiving his contractual pay, the employer is not under any obligation to provide the work save in cases of the need for public exposure,
commission and maintenance of skills and qualifications (Collier v Sunday Referee Publishing [1940] 2 KB 647).
From: Lionel Smith, Prof. [lionel.smith@mcgill.ca]
Sent: 29 January 2013 18:42
To: Robert Stevens; obligations@uwo.ca
Subject: Re: Termination for Breach
"Geys was entitled to the [absolutely ridiculously huge] bonus without having to do anything for it. "
Is his job still vacant so far as you know?
I don't think anyone has mentioned the decision of the Supreme Court in Societe Generale v Geys which concerns when a contract of employment is terminated following
summary dismissal, and has some interesting discussion of the general contractual position in the dissent of Lord Sumption.
Simplified we have a banker who under his contract of employment is entitled to a huge bonus if his employment is terminated before the year's end, but an absolutely ridiculously huge bonus if his employment continues into the next year.
His employer called him in at the end of November and told him he was sacked. After a bit of to-ing and fro-ing, his solicitors write back at the start of January to say they affirm the contract of employment, and he would like the absolutely ridiculously
huge bonus please.
Under the terms of the deal the bank could have terminated his contract by making a (small) payment in lieu of notice, but they did not do this when they purported to summarily dismiss him (whooops!).
Under the terms of the deal to earn the absolutely ridiculously huge bonus the banker doesn't actually have to do any work, he just has to be in employment at the relevant time.
A contract cannot according to (English) orthodoxy be unilaterally terminated (save in accordance with its terms) and I was always brought up to understand that a repudiation that is not accepted is a thing writ in water.
So the conclusion of the majority (Lord Hope, Lady Hale, Lord Wilson and Lord Carnwath) that he is entitled to the absolutely ridiculously huge bonus seems right to me (as presently advised). the bank could have dismissed him
much more cheaply, but that they did not is a matter between them and their lawyers.
Lord Sumption is in many ways the more interesting as he tries to extract, primarily from Lord Reid's speech in White & Carter the following rule (at [116])
"the innocent party to a repudiated contract cannot treat it as subsisting if (i) performance on his part
requires the co-operation of the repudiating party, and (ii) the contract is incapable of specific performance, with the result that that co-operation cannot be compelled."
For myself, I think this is confused and that the cases he cites do not stand for this proposition.
Under many contracts in order to perform your side of the deal you need the counter-party's co-operation. Under my contract of employment in order to earn my salary I need my employer's co-operation in order to be able to work. So I need access to the
lecture halls, students allocated to me to supervise etc. If I do not do my work I cannot fulfill the condition precedent to my getting paid my salary. I can only therefore maintain an action for my salary if my employer co-operates in allowing me to work.
If they don't, damages is all I'll get.
That does not mean that the contract of employment can be automatically terminated by my employer. That it is not may be illustrated by the fact that my employer can withdraw its repudiation of my contract at any time up until my acceptance. If termination
was automatic, it could not do so.
The peculiarity (?) of Societe Generale v Geys was that Geys was entitled to the bonus without having to do anything for it. If he was employed he got it. So the co-operation rule enunciated
by Lord Reid, when properly understood, does not apply.
Rob