Contractual claims arising on termination, chiefly wrongful dismissal and unpaid bonuses, and the tribunal's limited jurisdiction over them. Addis v Gramophone Co Ltd; Geys v Societe Generale.
Gross misconduct; conduct must fundamentally undermine the trust and confidence in the relationship. Approved in XX v YY as the simplest formulation, because it absorbs the nature of the contract, the severity of the breach and the reason the employee acted as they did. [Summary checked against a practitioner text, not the judgment.]
Applied by XX v YY [2026] EAT 89 (2026-06-15)
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Breach of contract; probationary period; implied terms. The contract provided a three-month probationary period with one week's notice, three months' notice after successful completion, and an express right to extend probation where an objective assessment had not been possible. The employer did not extend it. After it expired, over the claimant's holiday, the employer held a review and dismissed her on one week's notice. The tribunal implied a term allowing the review to be completed within a reasonable time after expiry. The EAT (6 February 2007) allowed her appeal: the term was not necessary, since the express right to extend met the employer's need and it had not been used; it would have given the employer a further right inconsistent with the express one; and a reasonable bystander in the employee's shoes would have taken probation to be complete once the period ended unextended. Assessment of her three months' notice pay, including any statutory adjustment and credit for earnings, was remitted.
Contract; repudiatory breach; restates the test as whether, looking at all the circumstances objectively from the perspective of a reasonable person in the position of the innocent party, the contract-breaker has clearly shown an intention to abandon and altogether refuse to perform. All the circumstances count insofar as they bear on that objective assessment: motive is irrelevant if relied on solely to show subjective intention, but relevant where it reflects something the innocent party knew, or a reasonable person would have known, and which throws light on how the act would be viewed. Applied in the employment context in Tullett Prebon and XX v YY.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Termination of contract; elective theory; a wrongful repudiation of a contract of employment does not terminate the contract unless and until the other party elects to accept the repudiation.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Constructive dismissal; trust and confidence; the EAT rejected the submission that Tullett Prebon had changed the law so as to require a tribunal to make a specific finding on the employer's subjective intention. The Court of Appeal there was emphasising that only objective intention is relevant, ascertained by looking at all the circumstances. Woods and Malik remain intact: breach of the implied term requires no intention to repudiate.
Contract; implied terms; enhanced redundancy payments by custom and practice. The Court of Appeal (Underhill LJ, Moore-Bick and Rimer LJJ agreeing) dismissed the employer's appeal and upheld the EAT's remittal. The question is one of ordinary contractual principle: whether, by making a benefit available over a period, in all the surrounding circumstances, the employer has evinced to the employees an intention that they should enjoy it as of right, judged by what the employees should reasonably have understood [34]-[36]. The list of factors from Albion Automotive Ltd v Walker is not unhelpful but is not the last word and must not be applied as a definitive checklist [31]. The tribunal's finding that payments had not been made without exception could not stand against unchallenged evidence that they had been made on every redundancy exercise from 1993 to 2006 [41], [56].
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Wrongful dismissal; gross misconduct; gross negligence. In deciding whether an employer was entitled to dismiss summarily, the focus is on the damage to the relationship between the parties: dishonesty and other deliberate actions that poison the relationship obviously fall within gross misconduct, but so can an act of gross negligence in an appropriate case. A regional operations manager who, knowing that an HR partner had sent store managers advice that risked compromising a staff engagement exercise central to pay and performance decisions, took no adequate steps to correct it, was guilty of gross negligence justifying summary dismissal. An appellate court will not interfere with that evaluation unless it falls outside the bounds on which reasonable disagreement is possible.
“The focus is on the damage to the relationship between the parties. Dishonesty and other deliberate actions which poison the relationship will obviously fall into the gross misconduct category, but so in an appropriate case can an act of gross negligence.”Elias LJ, at [23]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Contractual interpretation; textualism vs contextualism; the Supreme Court clarified that interpretation is a unitary exercise involving both the language of the contract and the factual context.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Contract; 'fire and rehire'; implied terms; injunctions. Employees had been promised Retained Pay as a 'permanent' feature of their terms for relocating. The Court of Appeal (Bean LJ, Newey and Lewis LJJ agreeing) allowed Tesco's appeal against Ellenbogen J's declaration and injunction. Neither 'permanent' nor the pre-contractual phrase 'guaranteed for life' showed a mutual intention that the contracts would continue for life or that Tesco's right to terminate on notice was limited [36]-[37]. Even had liability been made out, an injunction restraining dismissal was inappropriate, its terms not being plain enough for the employer to know what it could and could not do [55]-[56]. The Supreme Court reversed the decision in [2024] UKSC 28, holding that a term is implied in fact that Tesco's right to dismiss on notice cannot be exercised for the purpose of removing or diminishing Retained Pay, and restoring the injunction [57]-[58], [137].
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Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Contracts; discretion; implied term that flexibility clauses must be exercised honestly and rationally (Braganza duty).
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Breach of contract; conditions precedent vs subsequent; implied notice. The EAT held that an offer letter containing all key employment terms (salary, start date, hours, benefits) expressed as 'subject to' references, right-to-work check and probation created a binding contract subject to conditions subsequent, not conditions precedent preventing formation. The probation condition could only logically operate within an existing employment relationship. Reasonable notice is assessed at the date of contract formation, the employer's standard terms, produced only during litigation, could not be incorporated retroactively. Three months' implied notice was reasonable for a senior role involving international relocation.
“Whether the conditions were precedent or subsequent, the correspondence makes it clear that the original document had to be provided for that condition to be fulfilled before the claimant started work.”Judge Susan Walker KC (Hon.), at [28]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Wrongful dismissal; gross misconduct; duress. An assistant head teacher sent a sexual message to someone she understood to be a child while under coercive control, and did not report it for 18 months. The tribunal held that because repudiatory breach is assessed objectively, her motive could not affect the answer. HHJ Tayler held this was an error of law: applying Eminence and Neary, the tribunal must consider all the circumstances of the breach insofar as they bear on the objective assessment, including the pressure the employee was under. Duress may weigh heavily on the sending of the message and much less on the failure to report it. Remitted to the same tribunal.
“In conducting that assessment the Employment Tribunal should have considered the duress asserted by the claimant.”His Honour Judge James Tayler, at [34]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.