swarb.co.uk - law index
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Employment - From: 1900 To: 1929
This page lists 26 cases, and was prepared on 17 July 2015.Inman -v- Ackroyd  1 QB 613
Apportionment Act 1870
Dowden & Pook Ltd -v- Pook  1 KB 45
When an employment covenant is unlimited, the covenant cannot be rewritten to limit its territorial extent.
Allison -v- Alison's Trustees (1904) 6 F 496
A person cannot be an employee of a body of partners of which he is also a member.
Edmundson -v- Render  2 Ch 320
Employment, Legal Professions
The court considered a suggestion that a solicitor was not in breach of a non-compete clause promising to refrain from practising within a certain area where the work was carried out from an office outside the area: "The other [class of case] which I think would be equally a breach, is as follows. Suppose a client residing within the prohibited area comes to Harrogate to consult the solicitor, and the solicitor, after taking time to consider the matter, advises him by letter sent to him at his address within the prohibited area, is he acting as solicitor within the area? In my opinion he is. It does not matter whether he goes in person to the man 's house and says 'I advise you' so and so, or whether he writes him a letter and says, 'I advise you' so and so."
Ellis -v- Joseph Ellis & Co  1 KB 324
Lord Collins MR, Cozens-Hardy, Mathew LJJ
Employment, Company, Personal Injury
A member of a partnership formed to work a mine worked in it as foreman. He took weekly wages from the profits. He suffered a fatal accident in the mine and his widow sought compensation under the 1897 Act from the surviving partners. To qualify he had to have been a workman, which was defined broadly in the Act and extended beyond employees strictly defined: "'Workman' includes every person who is engaged in an employment to which this Act applies, whether by way of manual labor or otherwise, and whether his agreement is one of service or apprenticeship or otherwise and is expressed or implied, is oral or in writing". The Court was asked whether, given his position as a partner, he came within the definition. Could he be regarded as a workman in the employ of the partnership with the other partners being his employer? Held: The action failed.
Lord Collins MR thought that he could not: "The supposition that the deceased man was 'employed', within the meaning of that term as used in the Act, would appear to involve that he, as one of the partners, must be looked upon as occupying the position of being one of his own employers. It seems to me that, when one comes to analyse an arrangement of this kind, namely, one by which a partner himself works, and receives sums which are called wages, it really does not create the relation of employers and employed, but is, in truth, a mode of adjusting the amount that must be taken to have been contributed to the partnership assets by a partner who has made what is really a contribution in kind, and does not affect his relation to the other partners, which is that of co-adventurer and not employee. Such a partner cannot put himself in the position of not being a partner when he is one, or of being a workman employed, when that position would involve that he would be both employer and employee. The definition of a 'workman' given in the Act might cover a person in such a position, apart from the difficulty that arises from the consideration that he would be his own employer; but that is not conclusive, because the applicability of the Act appears to depend not merely on the question whether the injured man was a workman within the definition given by the Act, but also on the existence of the relation of employer and workman. Sect.1 sub-s.1 provides that, "if in any employment to which this Act applies personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the first schedule to this Act." That section appears to me clearly to contemplate a relation between two opposite parties, of whom one is employer and the other employee. It seems to me obvious, when the true position of the deceased is analysed, that he was not such a workman as is contemplated by the Act, and that a person cannot for the purposes of the Act occupy the position of being both employer and employee".
Mathew LJ stated that it was legally impossible for the same person to occupy the position of being both master and servant, employer and employed.
Cozens-Hardy LJ held that "the Act only applies where there is on one side an employer, and on the other side a workman, who are different persons."
Workmen's Compensation Act 1897
Earl -v- Lubbock  1 KB 253
Sir Richard Henn Collins MR, Stirling LJ, Mathew LJ
The plaintiff was injured when a wheel came off a van which he was driving for his employer, and which it was the duty of the defendant, under contract with the employer, to keep in repair. The county court judge and the Divisional Court both hold that, even if negligence was proved, the action would not lie. Held: The defendant was under no duty to the plaintiff and that there was no cause of action. Matthew LJ: "The argument of counsel for the plaintiff was that the defendant's servants had been negligent in the performance of the contract with the owners of the van, and that it followed as a, matter of law that anyone in their employment, or, indeed, anyone else who sustained an injury traceable to that negligence, had a cause of action against the defendant. It is impossible to accept such a wide proposition, and, indeed, it is difficult to see how, if it were the law, trade could be carried on. No prudent man would contract to make or repair what the employer intended to permit others to use in the way of his trade."
Clouston and Company Limited -v- Corry  UKPC 70;  AC 122
1 Dec 1905
[ Bailii ]
Devonald -v- Rosser  2 KB 728
An employer's failure to provide a reasonable amount of work, barring force majeure, is a breach of the contract of employment.
A Mactaggart & Co -v- Harrower; SCS 20-Jul-1906 -  ScotCS CSIH_1
General Billposting Company Limited -v- Atkinson; HL 1908 -  AC 118; (1908) 1 Ch 537; [1908-1910] All ER 619; (1908) 25 TLR 178
Tomalin -v- S Pearson and Son Ltd  2 KB 61
Cozens-Hardy MR, Farwell LJ
A widow claimed compensation for her husband's death overseas. Held: The Act did not provide for compensation to be payable. "What is the widow's claim here ? She is claiming, not as a party to the contract, not as claiming any rights under a contract made by her or by any person through whom she claims, but she is simply claiming the performance by the defendants of a statutory duty, which statutory duty is said to be found in the Workmen's Compensation Act. Now that brings us face to face with this proposition. What is the ambit of the statute and what is the scope of its operation ? It seems to me reasonably plain that this is a case to which the presumption which is referred to in Maxwell on the Interpretation of Statutes in the passage at p. 213 . . must apply: "In the absence of an intention clearly expressed or to be inferred from its language, or from the object or subject-matter or history of the enactment, the presumption is that Parliament does not design its statutes to operate beyond the territorial limits of the United Kingdom." and (Farwell LJ) "The question is one purely of the construction of the statute. The words of s.1, sub-s 1, are so wide that some limitation must necessarily be affixed to them. The words are, "If in any employment personal injury by accident arising out of and in the course of the employment is caused to any workman," and so on. To my mind the words "any employment" there must be restricted to employment within the ambit of the United Kingdom or on the high seas as provided by s.7."
Workmen's Compensation Act 1906 7
Addis -v- Gramophone Company Limited; HL 26-Jul-1909 -  AC 488;  UKHL 1
Kirkby -v- Taylor  1 KB 529
Though an apprenticeship contract need no longer be by deed, an executory apprenticeship contract must be in writing to be enforceable.
Re National Insurance Act 1911: Re Employment of Church of England Curates; 1912 -  2 Ch 563
Steggall -v- Lymburner (1912) 14 WALR 201
The defendant deducted from the wages of an employee, either at his request or by his consent, the amount of a debt due by the employee to the plaintiffs, and promised the plaintiffs to pay the amount to them. Held: "The contention on the part of the defendant before the magistrate was that his promise to pay was a promise to pay a debt of another person and, therefore, was not actionable, as there was no evidence in writing. In answer to that it is said that the Statute of Frauds has nothing to do with the case, and that the promise of the defendant is not to discharge the debt of another person, but a promise to pay his own debt. In Leake on Contracts, 5th edition, p.839, it is stated 'the contract or promise of the debtor to pay according to the order or assignment of his creditor is a promise to pay his own debt, although it operates in discharge of the debt of his creditor. It is, therefore, not a promise to pay the debt of another within the Statute of Frauds, and does not require written evidence.'" Burnside J agreed, describing it as "a very simple case".
Vacher & Sons Ltd -v- London Society of Compositors  UKHL 3;  AC 107
18 Nov 1912
Lord Haldane LC, Lord Moulton, Lord MacNaghten
Employment, Torts - Other
Lord Moulton said that the danger of departing from the ordinary meaning of unambiguous provisions is that "it may degrade into mere judicial criticism of the propriety of the acts of the Legislature".
Lord Haldane LC after stating that speculation on the motives of the Legislature was a topic which Judges cannot profitably or properly enter upon, said:—"Their province is the very different one of construing the language in which the Legislature has finally expressed its conclusions, and if they undertake the other province which belongs to those who, in making the laws, have to endeavour to interpret the desire of the country, they are in danger of going astray in a labyrinth to the character of which they have no sufficient guide. In endeavouring to place the proper interpretation on the sections of the statute before this House sitting in its judicial capacity. I propose, therefore, to exclude consideration of everything excepting the state of the law as it was when the statute was passed, and the light to be got by reading it as a whole, before attempting to construe any particular section. Subject to this consideration. I think that the only safe course is to read the language of the statute in what seems to be its natural sense."
Lord Macnaghten said: "a judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. The duty of the Court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction." and
"Now it is 'the universal rule', as Lord Wensleydale observed in Grey v Pearson, that in construing statutes, as in construing all other written instruments ' the grammatical and ordinary sense of the word is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further'. Acts of Parliament are, of course, to be construed acording to the intent of the Parliament' which passes them. That is 'the only rule' said Tindal CJ, delivering the opinion of the judges who advised this House, in the Sussex Peerage Case. But his Lordship was careful to add this note of warning: If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver'. Nowadays, when it is a rare thing to find a preamble in any public general statute, the field of inquiry is even narrower than it was in former times. In the absence of a preamble there can, I think, be only two cases in which it is permissible to depart from the ordinary and natural sense of the words of an enactment. It must be shewn either that the words taken in their natural sense lead to some absurdity or that there is some other clause in the body of the Act inconsistent with, or repugnant to, the enactment in question construed in the ordinary sense of the language in which it is expressed."
[ Bailii ]
Mason -v- Provident Clothing & Supply Co Ltd  AC 724
To uphold restrictions which a covenant imposes upon the freedom of action of the servant after he has left the service of the master, the master must satisfy the Court that the restrictions are no greater than are reasonably necessary for the protection of the master in his business.
Courts should be reluctant to read down a potentially excessively wide covenant to make it enforceable. If severance is sought, the court should ask whether that which is unenforceable ‘part of the main purport and substance’ of the clause in which it appears?
Lord Moulton said: "It would in my opinion be pessimi exempli if, when an employer had exacted a covenant deliberately framed in unreasonably wide terms, the Courts were to come to his assistance and, by applying their ingenuity and knowledge of the law, carve out of this void covenant the maximum of what he might validly have required. It must be remembered that the real sanction at the back of these covenants is the terror and expense of litigation, in which the servant is usually at a great disadvantage, in view of the longer purse of his master."
Amber Size and Chemical Co Ltd -v- Menzel; 1913 -  2 Ch 239
Scottish Insurance Commissioners -v- Church of Scotland  ScotCS CSIH_3; (1914) SC 16
18 Oct 1913
Scotland, Employment, Ecclesiastical
An assistant minister in the United Free Church said that he was an employee of the church. Held: He was not. Lord Kinnear said that the status of an assistant minister "is not that of a person who undertakes work defined by contract but of a person who holds an ecclesiastical office, and who performs the duties of that office subject to the laws of the Church to which he belongs and not subject to the control and direction of any particular master."
[ Bailii ]
Scottish Insurance Commissioners -v- Church of Scotland; CS 1914 - 1914 SC 16
Herbert Morris Ltd -v- Saxelby; HL 1916 -  1 AC 688; [1916-17] All ER 305
Attwood -v- Lamont  3 KB 571
A court considering whether a restrictive covenant in an employment contract is reasonable, can sever words which render it too broad 'if the severed parts are independent from one another and can be severed without the severance affecting the meaning of the part remaining' and/or where the covenant is not really a single covenant but is in effect a combination of several distinct covenants.
Great Western Railway Co -v- Bater; 1920 -  3 KB 266
Fitch -v- Dewes  2 AC 158
Lord Birkenhead LC
An assistant solicitor had already worked for his employer in humbler status for many years when, aged 27, he signed a covenant restricting his acting in competition with his employer within seven miles of Tamworth Town Hall for an unlimited time. He complained of the temporal restriction. Held: "What are the facts here? A boy of the age of 14 is taken from a humble employment in the office of the local co-operative society and he is trained in the office of a solicitor of position in this particular neighbourhood . . . Indeed I am of the opinion that it is in the public interest that a proper restrictive agreement of this kind between an established solicitor, possibly an elderly man, and a younger man should be allowed. It is in the public interest because otherwise solicitors carrying on their business without a partner would be extremely chary of admitting competent young men to their offices and to the confidential knowledge to be derived by frequenting those offices."
Waterman -v- Fryer  1 KB 499
Shearman J said: "The authorities show that in the early days there was the greatest reluctance to break any contract of apprenticeship. It was considered of very great importance that children should be taught a trade, and the Courts, in view of the great power which masters then had over apprentices, who generally resided with them, held that the obligation of the apprentice to serve and that of the master to teach were not interdependent but independent covenants. It was at the bottom of the reasoning in the older cases that the master could make the apprentice serve, even though the latter was unwilling."
Holland -v- London Society of Compositors and Another; 1924 - 1924 Times LR 440
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