Mr Nelson was employed as a producer but had in fact been engaged in the Caribbean Service of the BBC in terms of the work which he had actually been doing. The contract of employment expressly provided that he should serve wherever and however he might be required.
Held: The closure of the BBC service in the Caribbean did not involve a redundancy since he was expressly not employed to perform his services there.
Roskill LJ said: ‘The corporation’s case before the industrial tribunal was simplicity itself: ‘This man was employed for the purpose of the Caribbean Service. The Caribbean Service was being shut down as a result of Treasury demands for economy. Therefore we could no longer keep him there; his services were not required; and therefore he became redundant; and because he became redundant he cannot claim to have been unfairly dismissed.’ The industrial tribunal, as I said at the beginning of this judgment, accepted that argument and rejected the claim. They went into the matter with very great care. They held that Mr Nelson had become redundant. They reached that conclusion because of an argument that was apparently put forward that it was a term of Mr Nelson’s employment that he should be employed for, and for all practical purposes only for, programmes for the Caribbean. That emerges very clearly from the industrial tribunal’s reasons. It was said that, notwithstanding the very wide words of clause 8 of the agreement none the less: ‘We think it was a term of Mr Nelson’s contract of employment, arising by necessary implication or inference from the primary facts, that he was employed for the purposes of broadcasts to the Caribbean.’ With great respect to the tribunal, that seems to me to be an impossible conclusion as a matter of law, for this reason: it is a basic principle of contract law that if a contract makes express provision (as clause 8 did) in almost unrestricted language, it is impossible in the same breath to imply into that contract a restriction of the kind that the industrial tribunal sought to do.’ The employers were not allowed to amend their pleadings to allege dismissal for some other reason, and they had failed to establish a potentially fair reason for dismissal, so that the employee was entitled to succeed.
Roskill LJ, bUxton LJ
[1977] IRLR 148
England and Wales
Cited by:
Cited – Murray and Another v Foyle Meats Ltd (Northern Ireland) HL 8-Jul-1999
The company decided to make redundancies. The applicants, all selected, had worked in more than one section of the plant. All employees worked under the same contract, but employees were chosen only from the one section. The complainants said that . .
Cited – Reda, Abdul-Jalil v Flag Limited PC 11-Jul-2002
PC (Bermuda) The courts should be reluctant to accept a fetter on the employer’s right to dismiss on notice where there is an express term in the contract empowering the employer to do so.
Lord Millet . .
Cited – Nelson v British Broadcasting Corporation (No 2 ) CA 1980
Mr Nelson was employed as a producer but had in fact been engaged in the Caribbean Service of the BBC in terms of the work which he had actually been doing. The contract of employment expressly provided that he should serve wherever and however he . .
See Also – British Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
Cited – Victoria and Albert Museum v Durrant EAT 5-Jan-2011
EAT UNFAIR DISMISSAL
Reason for dismissal including some other substantial reason
The correct interpretation of section 106 of Employment Rights Act 1996 (‘the Act’) was considered.
The . .
Lists of cited by and citing cases may be incomplete.
Employment, Contract
Updated: 22 January 2022; Ref: scu.182825