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Annual Lecture 2001 : From Servant to Employee, A Study of the Common Law in Action

Speaker: The Right Honourable Lord Bingham of Cornhill, Senior Law Lord & Former Lord Chief Justice of England
Date:
2001-09-10T00:00:00+08:00

Much is said and written about the common law, its strengths and weaknesses. To some it is the invisible hand, the mysterious foundation of

 

“A land of settled government,
A land of just and old renown,
Where freedom slowly broadens down
From precedent to precedent.”1

 

To others of a more Benthamite persuasion, it is a disorderly rag-bag of particular instances, an incoherent array of rules supported by no better rationale than that this is what was decided last time. It is easy and often tempting to advance such propositions in a very general way. In this lecture I attempt to examine the dynamics of the common law in a very particular way. For purposes of my laboratory experiment I take one limited field, the contract of employment, and within that limited field one specific term, what is now called the implied term of trust and confidence.2

 

I take as my starting point the summary of the law given in the first edition of Halsbury’s Laws of England, published in 1911. The section bore the heading, old-fashioned as it now seems, “Master and Servant”.  It ran to something over 200 pages, of which nearly half were devoted to the rights and duties of the parties under the Employers’ Liability Act 1880 and the Workmen’s Compensation Act 1906. (Not much space, regrettably, was given to one recognisable product of Gladstonian paternalism, the Payment of Wages in Public Houses Prohibition Act 1883).

 

The duties of the servant to the master were said to be twofold. During his employment he must obey the master’s lawful orders, serve him faithfully, take proper care of his master’s property entrusted to his charge and exercise reasonable care and skill in the discharge of his duties.3

 

After the employment is ended, he must act with good faith towards his master, and thus must not use information gained during his employment to the disadvantage of the master or act in breach of the trust and confidence formerly placed in him.4 These duties, simply defined, would still be regarded as the core obligations of an employee today.

 

The master is said to owe four duties to his servant. At first blush this appears rather generous to the servant, but on examination all these duties except the last prove to be somewhat hollow. The first duty relates to the physical wellbeing of the servant. But the master is not bound to provide medical attendance or medicine even for a domestic servant.5  The master’s second duty relates to the safety of the servant, but the servant’s rights are modest:
“Apart from special contract or statute, therefore, he cannot call upon his master, merely upon the ground of their relation of master and servant, to compensate him for any injury which he may sustain in the course of performing his duties, whether in consequence of
the dangerous character of the work upon which he is engaged, or of the breakdown of machinery, or of the negligence or default of his fellow servants or strangers. The master does not warrant the safety of the servant’s employment; he undertakes only that he will take all reasonable precautions to protect him against accidents.”6  The master’s third duty relates to the character of the servant. But he is under no duty either to give the servant a written testimonial as to character on leaving his employment or to answer enquiries of persons wishing to employ the servant,7 and if he gives a reference which is false and defamatory the servant has no remedy unless he can prove express malice.8


The master’s fourth duty, in this instance one of value, is to indemnify or reimburse the servant against all liabilities and in respect of all expenses incurred by the servant in the reasonable performance of his duties.9

 

Two further points, of some significance for the future development of the law, may be noted in this 1911 summary. It is stated that the court will not decree specific performance of a contract of service at the suit of the master or the servant, partly on the ground that the contract is based upon mutual con.dence.10 It seems likely that this rule owed much to the domestic context which would have been very familiar to judges and practitioners in the eighteenth and nineteenth centuries. A high degree of personal contact would have been contemplated between the master and the higher servants attending upon him – cook, butler, groom, coachman, gardener, housekeeper and so on. It was no doubt felt to be futile and impracticable to attempt to compel by law the continuance of a personal relationship which has irretrievably broken down, as it is where irreconcilable differences arise between husband and wife.

 

Finally, this 1911 summary states the effect, as then understood, of the House of Lords’ then recent decision in Addis v Gramophone Co Ltd.11  Dealing with the right to damages of a servant wrongfully dismissed it is said:

 

“Since, however, his claim is founded upon breach of a contract, the damages to which he is entitled cannot be increased by reason of the manner in which he was dismissed, whether in respect of his wounded feelings or of the prejudicial effect upon his chances of finding other employment.”12

 

It has been suggested that the character of a country’s contract law is in large part determined by the kind of case which reaches the higher courts.13 In England and Wales, commercial and shipping cases have tended to predominate. Thus tough, clear rules have been laid down, in the belief that what businessmen value is certainty above all. So if a charterer under a standard clause in time charters is an hour late paying the hire due, whether through inadvertence, miscalculation or mishap, the owner can withdraw the vessel.14  In other countries, where personal and consumer contracts have fashioned the law, it has (so the argument runs) a less rigorous and more flexible approach. Be this as it may, the English employment contract as shaped by the common law was a product of hard-nosed contractual law-making. The servant owed full-blown duties of fidelity both during his employment and after. The master owed rather limited duties to the servant. And if the master wanted to get rid of the servant, for reasons good or bad, he was able to do so on giving the notice required by the contract or paying wages (or damages) instead.  As late as 1971 it was possible for Lord Reid, a great and enlightened judge, to state, quite accurately

 

“At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant’s only remedy is damages for breach of contract.”15

 

But times were changing. The hard-nosed rules of the common law were no longer accepted as giving adequate protection to a relationship which is for many employees, next to marriage, the closest, longest-lasting and most enduring relationship of their lives. So Parliament stepped in to remedy the perceived inadequacies of the common law. First, in 1965, it provided extra-contractual financial compensation for employees made redundant because the employer was ceasing to carry on the business for which the employee was employed or because the need for employees to do the sort of work done by the employee was diminishing.16 Then, as a quid pro quo to mollify labour unions bitterly opposed to other of its provisions, the Industrial Relations Act 1971 provided a remedy for an employee who had been unfairly dismissed, a remedy dependent on showing not that the employer had broken any contract but that the dismissal was unfair, which was defined to mean that the employer had no substantial reason for dismissing the employee from the position which he held.17 When the 1971 Act was repealed on a change of government in 1974 the unfair dismissal provisions were re-enacted, and statutory recognition was given to the common law concept of constructive dismissal: an employee was to be treated as dismissed by his employer if the employee terminated the contract in circumstances such that he was entitled to terminate it without notice because of the employer’s conduct.18  These unfair dismissal and constructive notice provisions have helped to transform the relationship between employer and employee – no longer master and servant.

 

The judges were not oblivious to the changing climate in employment law. In Hill v Parsons & Co Ltd19 in 1971, an interim injunction was granted to keep a contract of employment alive until trial – it was held that confidence had not broken down between the parties20 – and Sachs LJ said:

 

“… it seems appropriate to repeat that in matters of practice and discretion it is essential for the courts to take account of any important change in that climate of general opinion which is so hard to define but yet so plainly manifests itself from generation to generation. In that behalf account must, inter alia, be taken of the trend of the views of the legislature expressed on behalf of the community in its enactments and also of the trend of judicial
decisions.

 

Over the last two decades there has been a marked trend towards shielding the employee, where practicable, from undue hardships he may suffer at the hands of those who may have power over his livelihood – employers and trade unions. So far has this now progressed and such is the security granted to an employee under the Industrial Relations Act 1971 that some have suggested that he may now be said to acquire something akin to a property in his employment. It surely is then for the courts to review and where appropriate to modify, if that becomes necessary, their rules of practice in relation to the exercise of a discretion such as we have today to consider – so that its practice conforms to the realities of the day.”21

 

In 1974 Edmund Davies LJ spoke in a similarly enlightened vein.22  The case arose when an employer, by making unjustified and rather aggressive criticisms, provoked his gardener into using language described as “most regrettable”.23 The judge manfully performed his “unpleasant duty”24 of repeating what was said so as to make clear what had happened – which involved some insults couched in terms not unfamiliar even to the more unworldly members of the judiciary.25 Edmund Davies prefaced his account of this unseemly quarrel by saying:

 

“Reported decisions provide useful, but only general guides, each case turning upon its own facts. Many of the decisions which are customarily cited in these cases date from the last century and may be wholly out of accord with current social conditions. What would today be regarded as almost an attitude of Czar–serf, which is to be found in some of the older cases where a dismissed employee failed to recover damages, would, I venture to think, be decided differently today. We have by now come to realise that a contract of service imposes upon the parties a duty of mutual respect.”26


Dicta in a series of later cases recognise the changed nature of the employment relationship, focusing attention in particular not on the duties owed by employee to employer but on those owed by the employer to the employee.27 Lord Nicholls of Birkenhead neatly summarised the change in a recent case:28

 

“Employment, and job prospects, are matters of vital concern to most people. Jobs of all descriptions are less secure than formerly, people change jobs more frequently, and the job market is not always buoyant. Everyone knows this. An employment contract creates a close personal relationship, where there is often a disparity of power between the parties. Frequently the employee is vulnerable. Although the underlying purpose of the trust and confidence term is to protect the employment relationship, there can be nothing unfairly onerous or unreasonable in requiring an employer who breaches the trust and confidence term to be liable if he thereby causes continuing financial loss of a nature that was reasonably foreseeable. Employers must take care not to damage their employees’ future employment prospects, by harsh and oppressive behaviour or by any other form of conduct which is unacceptable today as falling below the standards set by the implied trust and confidence term.”

 

This changing vision is not of course vouchsafed to the United Kingdom alone. In the Supreme Court of Canada in 1987 the Chief Justice spoke in similar terms:

“Work is one of the most fundamental aspects of a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.”29

 

It was against this background – social, statutory and judicial – that the implied term of mutual trust and confidence was developed. An early approach to the term was articulated by the Employment Appeal Tribunal in 1977:

 

“It seems to us, although there is no direct authority to which we have been referred, that the law is perfectly plain and needs to be re-stated so that there shall be no opportunity for confusion in the future. In a contract of employment, and in conditions of employment, there has to be mutual trust and confidence between master and servant. Although most of the reported cases deal with the master seeking remedy against a servant or former servant from acting in breach of confidence or in breach of trust, that action can only be upon the basis that trust and confidence is mutual. Consequently, where a man says of his employer: ‘I claim that you have broken your contract because you have clearly shown you have no confidence in me, and you have behaved in a way which is contrary to that mutual trust which ought to exist between master and servant’, he is entitled in those circumstances, it seems to us, to say that there is conduct which amounts to a repudiation of the contract.”30

 

Just over a year later the tribunal gave the term more concrete expression.  It was held to be an implied term of the employment contract that employers should not, without reasonable or proper cause, conduct themselves in a manner calculated to destroy or seriously damage the relationship of confidence and trust between the parties, and if such conduct was shown it would go to the root of the contract and amount to a repudiation.31 But it was three years later, in Woods v W M Car Services (Peterborough) Ltd32 that the implied term, now described as “clearly established”33 and as “of great importance in good industrial relations”34 received its fullest expression. The case was concerned with the situation where an employer, wishing to get rid of an employee without liability to pay compensation for unfair dismissal or to make a redundancy payment, attempts to squeeze out the employee by a series of acts, all minor if viewed in isolation:

 

“Stopping short of any major breach of the contract, such an employer attempts to make the employee’s life so uncomfortable that he resigns or accepts the revised terms. Such an employer, having behaved in a totally unreasonable manner, then claims that he has not repudiated the contract and therefore that the employee has no statutory right to claim either a redundancy payment or compensation for unfair dismissal.

 

It is for this reason that we regard the implied terms we have referred to as being of such importance. In our view, an employer who consistently attempts to vary an employee’s conditions of service  (whether contractual or not) with a view to getting rid of the employee or varying the employee’s terms of service does act in a manner calculated or likely to destroy the relationship of confidence and trust between employer and employee. Such an employer has therefore breached the implied term. Any breach of that implied term is a fundamental breach since it necessarily goes to the root of the contract …”35

 

Thus the employee may in such circumstances claim to have been constructively dismissed, and in the statutory language “entitled to terminate [the contract] without notice by reason of the employer’s conduct”.36

 

When Mrs Woods’ case went to the Court of Appeal, Lord Denning MR had reservations about this new implied term, perhaps because it seemed to have little to do with the old concept of trust and confidence which had for so long been held to preclude the grant of injunctions to enforce contracts of personal service. He said:

 

“It is the duty of the employer to be good and considerate to his servant.  Sometimes it is formulated as an implied term not to do anything likely to destroy the relationship of confidence between them: see Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR84. But I prefer to look at it in this way: the employer must be good and considerate to his servants. Just as a servant must be good and faithful, so an employer must be good and considerate. Just as in the old days an employee could be guilty of misconduct justifying his dismissal, so in modern times an employer can be guilty of misconduct justifying the employee in leaving at once without
notice …”37

 

In questioning the new implied term Lord Denning was for once backing the wrong horse, although his formulation could well be thought to capture the essence of the new thinking rather than reference to trust and confidence. But the new term had now taken root too deeply to be cast aside. In Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd,38 which concerned the power of a company to consent or withhold consent to changes in the rules of a pension scheme, reference was made to the implied term: it was here called “the implied obligation of good faith”, and was said to apply as much to the exercise of his rights and powers under a pension scheme as to any other rights and powers of an employer.39 The seed thus sown has produced a large crop of decisions, mostly in the context of unfair constructive dismissal, and mostly in favour of employees, sometimes with and sometimes without express reference to the term. A supervisor was held to be constructively dismissed because she did not receive from her employer the support she was entitled to expect – the employer was no longer on her side but on the side of those she was meant to be supervising.40 A personal secretary was found to be constructively dismissed when the managing director for whom she worked described her, in her hearing, as “an intolerable bitch on a Monday morning”.41 A warehouseman who allowed a customer to take away a vacuum cleaner on approval was entitled to terminate his contract when he was falsely accused of theft.42 A mother’s help who resigned after voluntarily forming a lesbian relationship with the mother she had been employed to help was held to have been constructively and unfairly dismissed.43 An employee who received a warning letter from his director
accusing him of negligence and inefficiency and who, while suffering a bout of mental ill-health, several times requested a meeting with his director which was refused, was held to be entitled to terminate the contract on the ground of the employer’s unreasonable conduct.44 A junior employee who wanted a transfer to another office and was falsely told that there were no vacancies when the real reason for denying her the job was a bad report on her performance, not communicated to her, was held to be entitled to recover.45 So, on appeal, was an employee whose employer had demoted him and altered the pay structure to his disadvantage.46 In Wadley v Eager Electrical Ltd47 a long-serving employee of good character was dismissed when his wife was arrested for theft from the employer. It was argued that the misconduct of the wife had destroyed the employer’s trust and confidence in the husband. But this argument was rejected on appeal, since no act of the employee had caused any breakdown of trust and confidence. A consultant surgeon in dispute with a colleague who was invited to undergo a psychiatric examination and who was dismissed when he refused was entitled to treat himself as dismissed even when the complaints against him were dismissed and the suspension removed.48 A Roman Catholic barman working in a Protestant public house in Belfast was held to have been unfairly dismissed when threats were made against him which his employer did nothing about, causing him to resign.49 Many further instances could be cited.

 

All these cases may fairly be seen as fairly mainline applications of the implied term to widely differing factual situations. No major exercise of imagination was called for once the initial leap had been taken. But it is evident from reading the cases that application of the term (sometimes without acknowledgement) did lead to imaginative solutions which would scarcely have been reached without it. One example is United Bank v Akhtar.50 Mr Akhtar was a junior bank employee whose contract provided that the bank might “from time to time require an employee to be transferred temporarily or permanently to any place of business which the bank may have in the UK for which a relocation allowance may be payable at the discretion of the bank”. He worked at Leeds, and was required at very short notice to transfer to Birmingham, some distance away. Having sought unsuccessfully for a period of leave in which to make arrangements for the move, and for a deferment of the transfer date, he treated himself as constructively dismissed. On anything approaching a literal construction of the contract his contention would have been hard to sustain. But he succeeded because it was taken to be inherent in Browne-Wilkinson J’s judgment in Woods “that there may well be conduct which is either calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee, which a literal interpretation of the written words of the contract might appear to justify, and it is in that sense that we consider that in the field of employment law it is proper to imply an over-riding obligation in the terms used by Mr Justice Browne-Wilkinson, which is independent of, and in addition to, the literal interpretation of the actions which are permitted to the employer under the terms of the contract”.51

 

So it would seem that while an implied term cannot override an express term, the exercise of a power conferred by an express term may be subject to constraints derived from an implied term.

 

The implied term of trust and confidence was not mentioned by the House of Lords in Scally v Southern Health and Social Services Board52 but it seems that Lord Bridge (who gave the only opinion) must have been thinking in very similar terms. The case concerned doctors late in joining the health service who were not told of their right, within a limited period, to top up their entitlement under a statutory superannuation scheme on
advantageous terms. The issue was whether the employer was legally liable for failing to tell these doctors of their rights, of which they could not be expected to be aware. On the particular facts of the case it was held to be necessary to imply an obligation on the employer to bring to the doctors’ attention the very benefit which the right to top up was intended to confer.53 It might well have been said that the employer’s duty of trust and confidence required no less.

 

The duty of care owed by employer to employee has been influenced by similar forces. In Spring v Guardian Assurance plc54 the question was whether an ex-employee could recover damages for negligence against his former employer who had carelessly written an adverse reference which had prevented the employee getting another job. The employer’s argument, upheld by one law lord, was that the proper vehicle for recovering damages for an injury to reputation lay in defamation, and that to allow an action in negligence would deprive the employer of the qualified privilege defence available to him if sued in defamation. The majority took a different view, expressly recognising the changed nature of the employment relationship.55 In a similar way, the employer’s duty to take reasonable care for the safety of his employee was extended from physical to psychiatric injury: a social worker dealing with child abuse who had mental breakdowns caused by overwork and stress, and who was then dismissed on grounds of permanent ill-health, recovered damages from the employer for failing to take reasonable steps to protect him against these ill effects.56

 

W A Goold (Pearmak) Ltd v McConnell57 was an imaginative application of the implied term. A jewelry salesman was rewarded by salary and commission. A change in sales policy led to a drop in his commission. He tried to discuss the matter with the managing director and the chairman, but unsuccessfully, and he resigned. He was held to have been constructively dismissed. Building on the statutory requirement that an employee be given written particulars of his employment, and that these include reference to a procedure for resolving grievances, the Employment Appeal Tribunal endorsed the conclusion that there was an implied term in the contract of employment that employers would reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they might have.58 The right to obtain redress against grievances was described as “fundamental” because of all the difficulties which may arise “when people of different backgrounds and sensitivities are required to work together, often under pressure”.59 The House of Lords’ decision in Malik v Bank of Credit and Commerce International SA60 is perhaps the most notable decision on the implied
term so far. The House there, for the first time, expressed its unqualified approval of the implied term,61 which the parties both accepted as terms of the relevant contracts,62 and the term was applied in a novel and constructive way. The plaintiffs in the action had been employed by BCCI until, following the collapse of the bank and the appointment of
provisional liquidators, they were dismissed as redundant. The appeal was argued on assumed facts, the most important of which were that the bank had been operated in a corrupt and dishonest manner; that the plaintiff employees had been innocent of any involvement in those nefarious practices, of which they had been unaware; that following the collapse of the bank these practices had become widely known; that the plaintiff employees had been stigmatised because of their previous association with the bank, and so suffered a handicap in obtaining alternative employment; and that they had suffered loss as a result. There were two major questions in the House of Lords. The first was whether, by carrying on business in a corrupt and dishonest way, the bank had
breached its duty of trust and confidence to the employees. The second was whether, despite Addis v Gramophone Co Ltd,63 the employees could recover damages if they were able to prove all the relevant facts. To both questions the House, differing from the courts below, gave an affirmative answer. Such an outcome would, I think, have been inconceivable some 30 or so years ago. The complex interplay between changing social attitudes, statute and judicial decision-making contrived to deliver a result which may be thought to do substantial justice to the important interests of those involved.

 

The complex interplay between changing social attitudes, statute and judicial decision-making may however give rise to its own problems. Such was the case in Johnson v Unisys Ltd.64 Starting at the age of 23, the employee worked for the employer for 17 years until, following psychological problems, he was dismissed as redundant in 1987. He was re-engaged in 1990, but in 1994 was summarily dismissed for alleged misconduct. The manner of his dismissal left almost everything to be desired, and his complaint of unfair dismissal, made to a tribunal as statute required, was successful. He recovered the maximum compensation which the statute permitted, then a relatively modest total of some £11,600. He however claimed that the manner of his dismissal had had a devastating effect on his mental health and personality, causing him to be unemployed for a long period and to suffer loss estimated at more than £400,000.
This was said to be attributable to the employer’s breach of the implied term of trust and confidence, and so recoverable by action in the ordinary courts. The claim, again judged on assumed facts, was struck out at first instance and this decision was upheld on appeal.65

 

In the House of Lords, opinion was divided. In a trenchant opinion dissenting on the substantial issues, Lord Steyn held that Addis’s case, properly understood, did not preclude the recovery of special damage flowing from the manner of a wrongful dismissal, that a modern and progressive approach to employment contracts highlighted the importance of protecting employees against harsh and unacceptable employment practices and that the statutory provision for redress against unfair dismissal was not incompatible with recovery of substantial damages caused by breach of the trust and confidence implied term even if these flowed from the manner of the dismissal.66 Lord Steyn concurred in the result only because he accepted that the damages claimed were clearly too remote.

 

The majority (which included me) could not accept this view. The crucial difference was expressed by Lord Nicholls:

 

“Having heard full argument on the point, I am persuaded that a common law right embracing the manner in which an employee is dismissed cannot satisfactorily co-exist with the statutory right not to be unfairly dismissed. A newly developed common law right of this nature, covering the same ground as the statutory right, would fly in the face of the limits Parliament has already prescribed on matters such as the classes of employees who have the benefit of the statutory right, the amount of compensation payable and the short time limit for making claims. It would also defeat the intention of Parliament that claims of this nature should be decided by specialist tribunals, not the ordinary courts of law.”67

 

It was this point which Lord Hoffmann also had in mind:

 

“Employment law requires a balancing of the interests of employers and employees, with proper regard not only to the individual dignity and worth of employees but also to the general economic interest. Subject to observance of fundamental human rights, the point at which the balance should be struck is a matter for democratic decision. The development of the common law by the judges plays a subsidiary role. Their traditional function is to adapt and modernise the common law. But such developments must be consistent with legislative policy as expressed in statutes. The courts may proceed in harmony with Parliament but there should be no discord.”68

 

So what of the future? Is further development to be expected? And if so in what direction? Prediction is always perilous. But it seems very unlikely that the obligations which the law now places on employers will be significantly relaxed by judicial decision, and even less likely that they will be relaxed by statute. Attempts may, I suppose, be made to relax the obligations by express terms set out in a contract of employment, but I would not expect such terms to be sympathetically interpreted. In the Imperial Group Pension Trust case mentioned above,69 the implied term of trust and confidence was treated as an implied obligation of good faith, and it would now seem that for all practical purposes employer and employee are treated as owing each other a duty of good faith. The common law has, on the whole, resisted implication of such a duty save in certain special and clearly defined situations. The tendency in countries governed by the civil law has been to assume such a duty. So at least in this limited field there has been a happy rapprochement – and use of the French seems appropriate. It is a development, in my opinion, to be welcomed: for while the law cannot afford to be blind to the delinquencies of human beings it should on the whole encourage, and so far as possible assume, honourable, constructive and moral conduct on their part. In few relationships is this more important than between employer and employee.
 
 
1 Tennyson, ‘You ask me, why’, iii.

2 Much of the ground covered in this lecture has been very interestingly explored by Douglas Brodie in a series of articles: “The Heart of the Matter: Mutual Trust and
Con.dence (1996) 25 ILJ 121; “Beyond Exchange: The New Contract of Employment”
(1998) 27 ILJ 79; “A Fair Deal at Work” (1999) 19 OJLS 83; “Wrongful Dismissal
and Mutual Trust” (1999) 28 ILJ 260. I have derived much help from reading these
articles, as I have from The Hon Mr Justice Lindsay, “The Implied Term of Trust and
Con.dence”, (2001) 30 ILJ 1.

3 Op.cit., p 125, para 245.

4 Op.cit., p 126, para 245.

5 Op.cit., p 118, para 233.

6 Op.cit., pp 119-120, para 234.

7 Op.cit., p 121, para 237.

8 Ibid.

9 Op.cit., p 124, para 242.

10 Op.cit., pp 113-114, para 220.

11 [1909] AC 488.

12 Op.cit., pp 111-112, para 218.

13 Kötz, “The Common Code of European Private Law: Third General Meeting, Trento 17-19 July 1997”. European Review of Private Law, 5-549 at 551.

14 See, for example, Mardorf Peach v Attica Sea Carriers Corporation of Liberia (The
Laconia) [1977] AC 850.

15 Malloch v Aberdeen Corporation [1971] 1 WLR 1578 at 1581.

16 Redundancy Payments Act 1965, s.1(2).

17 Industrial Relations Act 1971, ss 22, 24.

18 Sch. 1, para 5(2), of the Trade Union and Labour Relations Act 1974.

19 [1972] Ch 305.

20 Ibid, at 320.

21 Ibid, at 321.

22 Wilson v Racher [1974] ICR 428.

23 Ibid, at 429.

24 Ibid, at 429.

25 Ibid, at 430-431.

26 Ibid, at 430.

27 See, for example, Spring v Guardian Assurance Plc [1995] 2 AC 296 per Lord Slynn
at 335, Lord Woolf at 352; Johnson v Unisys Ltd (unreported, 22 March 2001, [2001]
UKHL 13), per Lord Steyn, Lord Hoffmann and Lord Millett.

28 Malik v Bank of Credit and Commerce International (SA) [1998] AC 20 at 37-38.

29 Reference Re Public Service Employee Relations Act [1987] 1 SCR 313 at 368, per
Dickson CJ, quoted with approval by Iacobucci J in Wallace v United Grain Growers
Ltd (1997) 152 DLR (4th) 1 at 32-33.

30 Robinson v Crompton Parkinson Ltd [1978] ICR 401 at 403.

31 Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84 at 85-86.

32 [1981] ICR 666.

33 Ibid, at 670.

34 Ibid, at 671.

35 Ibid, per Browne-Wilkinson J, giving the judgment of the Employment Appeal
Tribunal, at 671-672.

36 The language in Sch.1, para 5(2) of the 1974 Act was re-enacted in the Employment
Protection (Consolidation) Act 1978, s.55(2) and then in the Employment Rights Act
1996, s.95.

37 [1982] ICR 693 at 698. The implied term was expressly approved by the Court of
Appeal in Lewis v Motorworld Garages Ltd [1986] ICR 157.

38 [1991] ICR 524.

39 Ibid, at 533.

40 Associated Tyre Specialists (Eastern) Ltd v Waterhouse [1976] IRLR 386.

41 Isle of Wight Tourist Board v Coombes [1976] IRLR 413.

42 Fyfe & McGrouther Ltd v Byrne [1977] IRLR 29.

43 Wood v Freeloader Ltd [1977] IRLR 455.

44 Wetherall (Bond St W1) Ltd v Lynn [1978] ICR 205.

45 Post Of.ce v Roberts [1980] IRLR 347.

46 Lewis v Motorworld Garages Ltd [1986] ICR 157.

47 [1986] IRLR 93.

48 Bliss v South East Thames Regional Health Authority [1987] ICR 700.

49 Smyth v Croft Inns Ltd [1996] IRLR 84.

50 [1989] IRLR 507.

51 Ibid, at 512, para 50.

52 [1992] 1 AC 294.

53 Ibid, at 306.

54 [1995] 2 AC 296.

55 Ibid, at 335, 352.

56 Walker v Northumberland County Council [1995] IRLR 35.

57 [1995] IRLR 516.

58 Ibid, at 517, para 11.

59 Ibid, at 517, para 12.

60 [1998] AC 20.

61 Particularly per Lord Steyn at p 46.

62 Per Lord Nicholls at pp 33-34.

63 [1909] AC 488.

64 [2001] 2 WLR 1076, [2001] UKHL 13.

65 [1999] ICR 809.

66 [2001] 2 WLR 1076 at 1078-1090.

67 Ibid, at 1078, para 2.

68 Ibid, at 1091-1092, para 37.

69 See footnote 38.