Chambers Blog

Paul McGrath is the winner of the Leicester University distance learning LLM Employment Law New Walk Chambers Prize. His dissertation was described by his supervisor as a "highly commendable piece of work". It was titled 'Band on the Run' and it related to the law of unfair dismissal. Paul McGrath is an associate with McDermott, Will & Emery in London.

Chambers' employment barristers act and advise in all employment tribunal matters in Leicester, Nottingham, Birmingham and further afield including disability discrimination, holiday pay, breach of contract and unfair dismissal cases.

 Many employment tribunal claims concern constructive dismissal claims where an employee can resign because of an employers serious breach of contract towards him. In legal parlance he can accept the employer's repudiation of the contract. For this, the employee can rely upon the employer's breach the implied term in the contract of mutual trust and confidence. However employers should be alert to a defence they may have if the employee has first broken the employment contract. If so, the employee is not entitled to claim unfair constructive dismissal by claiming a repudiation by the employer because he has first destroyed the employment relationship. This happened in the recently reported case of RDF Media Group Plc V Clements [2008] IRLR 207 in fact a High Court case, which of course New Walk Chambers employment barrister cover as well.

 There Mr Clements had agreed a 3 - year non-competitive agreement with his employers RDF Media Group which he wished to get out of. The agreement provided that the 3 year period would be reduced to 2 years if the employers unlawfully dismissed him. Clements alleged that the employers had breached the implied term of trust and confidence by inter alia going to the the press with unflattering remarks (that Mr Clements was a "phenomenal egomaniac" and other information. The High Court held that the employer had indeed overstepped the mark by going to the press [other comments made internally that Mr Clements was "a bit dim" did not breach the term] and these were in breach of contract as being a serious attack on his character. However Mr Clements could not rely on the employer's breaches because he himself had been earlier in breach of contract by contacting a competitor of the employer and disclosing confidential information: Mr Clements himself had been disloyal and in breach of his own duty of fidelity.

The result was that Mr Clements had not been unlawfully dismissed by the employer and thus was bound by the full 3 year period of his non-competition agreement with the employer.

Wait for the new direct public access employment barrister's website which will be out soon. New Walk Chambers employment barristers as well as offering their services for employment tribunal claims can now in certain cases offer their services direct to the public.

This applies to employment tribunal claims for both Claimants and Respondents in all areas of employment law.

Written by Robert Rees, Barrister at New Walk Chambers, specialising in Employment Law.

  The recent Court of Appeal case of Dynamex Friction Ltd & Anor v Amicus & Ors is a fascinating look at the impact upon employees where a company enters administration and the business subsequently passes to a phoenix company. In many cases the owners and controllers of the phoenix are the same individuals who drove the original company into administration in the first place.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 are designed to provide rights to employees where their employment transfers from one person or company to another. It provides that employees will have a claim of unfair dismissal if they were dismissed in consequence of the transfer. If the business had simply been sold on without the intervening administration, then the employees' employment would have transferred with it.

In this case however, when the company went into administration, the administrator decided that there wasn't enough money in the company to pay the employees so dismissed them all. He then sold on the business to a company which fell into the eventual control of the original director. Here the reason for the dismissal was not a transfer, it was because the administrator couldn't afford the wage bill.

The employees contended that their dismissal was the consequence of the transfer, as they alleged the overall process was a result of the ‘machinations' of the previous director and that he had planned it all along. Had this argument been successful it would have struck an important blow for the many employees who find themselves in this situation. The Court of Appeal however, by a majority, found that once it was established the dismissing officer made his decision independently, and for a particular reason, it was impossible to look behind that reason at any surrounding context or scheming.

Written by Joseph Neville, Pupil at New Walk Chambers, specialising in Employment Law.