Duration, lawful termination and frustration of the Employment Contract

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Abstract

This chapter emphasises the pivotal role that the common law rules on the implied duration and the termination of the contract of employment play in defining the essence and nature of that institution. The claim is made that the implied common law rule treating the employment contract as indeterminate in duration provides explanatory force for the rules on classification, suspension and termination of the employment contract. Turning to the common law of termination, the chapter explains how key House of Lords and Supreme Court authorities such as Johnson, Eastwood, and Edwards do not preclude the addition of ‘just cause’ requirements to the unrestricted reasonable notice rule as a means of furnishing protection to employees falling outside the coverage of the statutory unfair dismissal regime. The chapter moves on to address other common law rules in play in respect of the termination of the employment contract, e.g. those applying in the context of termination by the employer making a payment in lieu of notice, summary dismissal by the employer, resignation and retirement by the employee and the expiry and non-renewal of a fixed-term employment contract. Reforms of these rules are suggested that pursue an ‘integrationist agenda’, i.e. an approach that is designed to gradually assimilate the common law rules with those applicable for the purposes of the unfair dismissal legislation. Proposals for a similar alignment of the common law rules of frustration with the interpretation of that conception for statutory purposes are also made. The chapter ends by exploring how the suggested reforms can be divided into those which promote substantive fairness on the one hand and those seeking to achieve procedural fairness on the other.
Original languageEnglish
Title of host publicationThe Contract of Employment
EditorsMark Freedland, David Cabrelli, Alan Bogg, Hugh Collins, Nicola Countouris, A C L Davies, Simon Deakin, Jeremias Prassl
Place of PublicationOxford
PublisherOxford University Press
Pages515-536
Number of pages21
Edition1
ISBN (Print)9780198783169
Publication statusPublished - 6 Jun 2016

Keywords

  • Employment Law
  • Labour Law
  • Contract of Employment
  • reasonable notice rule
  • resignation
  • retirement
  • wrongful dismissal
  • summary dismissal
  • Garden leave
  • fixed-term employment contract
  • frustration

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