EAT Contract of Employment : Wrongful Dismissal – Implied term/variation/construction of term
UNFAIR DISMISSAL – Contributory fault
The Claimant was summarily dismissed. He brought a claim of wrongful dismissal. The Employment Judge found that he had been wrongfully dismissed, the conduct upon which the Respondent relied not being inadvertent and not in repudiatory breach. It was argued that the Respondent was entitled to rely upon an express term of the contract (clause 14.10) so that, even if the Claimant’s conduct was not repudiatory, the Respondent was entitled to dismiss him without notice.
Held: on its true interpretation, clause 14.10 did not apply to a minor or inadvertent breach.
The Claimant was also successful (subject to deductions for contributory conduct and Polkey) in a claim for unfair dismissal. The Respondent argued that by reason of clause 14.10 the deduction for contributory conduct should have been 100%. This argument failed both by reason of the Appeal Tribunal’s interpretation of clause 14.10 and in any event because section 122(2) and 123(6) of the Employment Rights Act 1996 require any assessment of contributory conduct to be made on a just and equitable basis.
Da vid Richardson J
[2013] UKEAT 0164 – 13 – 3001
Bailii
England and Wales
Employment
Updated: 29 November 2021; Ref: scu.520831