The claimant sought to require the defendants not to work during their notice period to achieve the equivalent of garden leave despite there being no provision for garden leave in the contracts. It was said that the defendants had conspired together as a preliminary to leaving and then competing with the claimants using confidential and other material acquired from them, with attempts to directy damage the business of the claimants.
Held: The case was traditionally approached from the aspect of the employee’s right to work. Such a right existed in this case. The defendants’ form of work depended on the maintenance and development of contacts and those advantages might become stale. Springboard relief was not properly available, since any continuing damage from the defendants’ activities was now controlled by undertaking. On a difficult balancing exercise, the court favoured interim relief so that the defendants should be obliged at least to work their period of notice: ‘The claimant should not be expected to lose the benefit of the notice period and the sterilisation of the defendants’ activity during that period. ‘
Cranston J said: ‘the law is clear. Employees who have a right to work have that right subject to the qualification that they have not, as a result of some prior breach of contract or other duty, demonstrated in a serious way that they are not ready or willing to work, or, to put it another way, that they have not rendered it impossible or reasonably impracticable for the employer to provide work. The breach of contract or other duty must constitute wrongdoing, by reason of which they will profit or potentially profit. In such circumstances, there is no obligation on the employer to provide work, although the contract of employment is ongoing. This is not an implied term in the employment contract but is a qualification to the legal construct, the right to work. ‘
Judges:
Cranston J
Citations:
[2008] EWHC 1340 (QB)
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Nottingham University v Fishel QBD 19-Jan-2000
When a university embryologist, the respondent, worked abroad he did not act in any breach of fiduciary duty. He remained under a specific duty to direct his fellow embryologists to work in the interests of the university and not in his own . .
Cited – Lansing Linde v Kerr CA 1991
Staughton LJ held that ‘trade secrets’ embrace information used in a trade, restricted in its dissemination, and the disclosure of which would be liable to cause real or significant harm to the party claiming confidentiality. He considered the . .
Cited – Collier v Sunday Referee Publishing Co 1940
The plaintiff was a chief sub-editor with the defendant. He sought the right to work and be paid for working.
Held: The employee had the right to work. Asquith J discussed a former employee’s right to earn a living: ‘It is true that a contract . .
Cited – Langston v Amalgamated Union of Engineering Workers CA 19-Dec-1973
Unless there is an express provision for this an employer must provide work to an employee when there is available work to be done. . .
Cited – William Hill Organisation Ltd v Tucker CA 8-Apr-1998
In the absence of a sufficient clause providing otherwise, an employee required not to attend work during his notice period may work for another employer during that period. The court should ask whether the bargain between the employer and the . .
Cited – Miles v Wakefield Metropolitan District Council HL 1987
The claimant was a superintendent registrar of Births Deaths and Marriages. His union instructed him not to conduct weddings on Saturdays. He had been told that if he failed to perform his full range of duties on a Saturday (including marriages), he . .
Cited – Thomas Marshall (Exports) Ltd v Guinle ChD 1979
The managing director defendant had resigned before the end of the contractual term. There was an express covenant in his contract against using or disclosing the company’s confidential information during or after his employment. It was submitted . .
Cited – Bremer Vulkan Schiffbau und Maschineenfabrik v South India Shipping Coroporation HL 1981
The parties had referred their dispute to arbitration, but there had been inordinate delay, and the plaintiffs complained that the delay had prejudiced them, and sought an injunction to prevent further contuance of the arbitration, saying that the . .
Cited – RDF Media Group Plc and Another v Clements QBD 5-Dec-2007
The defendant had sold his business to the claimants and in part consideration had accepted restrictive covenants as to his not competing with them. On indicating his desire to leave the claimants and work for a competitor, made statements which the . .
Cited – Paal Wilson and Co v Partenreederei Hannah Blumenthal (The Hannah Blumenthal) HL 1983
The House was asked whether a contract to abandon an arbitration might be implied from conduct, or a lack of conduct.
Held: The abandonment of a contract can be effected by the entry of the parties, expressly or by necessary inference from . .
Cited – Faccenda Chicken Ltd v Fowler CA 1986
Nature of Confidentiality in Information
The appellant plaintiff company had employed the defendant as sales manager. The contract of employment made no provision restricting use of confidential information. He left to set up in competition. The company now sought to prevent him using . .
Cited – Roger Bullivant Ltd v Ellis CA 1987
The plaintiffs sought various remedies against an ex-employee who had set up a company in competition with the plaintiffs. One was for breach of confidence in respect of a card index of customer contacts, a copy of which the first defendant had . .
Applied – Provident Group plc v Hayward 1989
Where there was a period of notice under a contract of employment, and it was not an excessive period, then it may be said, forcefully and correctly, that employers should be able to obtain its protection by paying the employee and preventing him . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 04 July 2022; Ref: scu.270297