The claimant had been absent through sickness. When he recovered to be able to return, his co-employees were on strike. He joined the strike. All the strikers were dismissed.
Held: At common law, by going on strike, employees commit repudiatory breaches of their contracts of employment. It is on the employer to decide whether to accept the breach as an end to the contract or to allow the contract to continue despite the breach.
Phillips J said: ‘One of the matters considered at length by the Donovan Commission was the effect of strikes on the contract of employment . . it was clearly the view of the commission that at common law a contract cannot be terminated unilaterally and that if an employee refuses to carry on working under his contract of employment, his employer has the option either to ignore the breach of contract and to insist upon performance of it, or alternatively to accept such a fundamental breach as a repudiation of the contract and to treat himself as no longer bound by it. In our judgment this view was in accordance with general principle and supported by authority. In short, refusal to work during a strike did not involve ‘self dismissal’ by the strikers but left the parties to the contract hoping that the strike would one day be settled and the contract be alive unless and until the employer exercised his right to dismiss the employee.’
Judges:
Phillips J
Citations:
[1977] 1 All ER 775, [1976] 3 WLR 901, [1977] ICR 61, [1977] QB 284
Citing:
Explained – Morgan v Fry CA 1968
The threat was made by union officials of calling a strike by giving notice.
Held: The act of going on strike constitutes a fundamental breach by an employee of his contract of employment, the act of going on strike amounting to a unilateral . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 04 May 2022; Ref: scu.447653