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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Standard Life Health Care Ltd v Gorman & Ors [2009] EWCA Civ 1292 (11 May 2009) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/1292.html Cite as: [2010] IRLR 233, [2009] EWCA Civ 1292 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE SEYMOUR QC)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LONGMORE
and
LORD JUSTICE JACOB
____________________
STANDARD LIFE HEALTH CARE LIMITED |
Respondent/ Claimant |
|
- and - |
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GORMAN & ORS |
Appellants/ Defendants |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
____________________
Crown Copyright ©
Lord Justice Waller:
"In my judgment, therefore, 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."
"[A] plaintiff in an action for remuneration under a contract of employment must, in my judgment, assume the initial burden of averring and proving his readiness and willingness to render the services required by the contract (subject, no doubt, to any implied term exonerating him from inability to perform due, for instance, to illness)."
"The essential question is whether what Mr. Irvine [as again he was in those days] has termed the theory of interdependent obligation is consistent with the authorities relied upon by Mr. Sedley in support of his proposition that, short of accepting the employee's breach as a repudiation determining the contract altogether, there is no way in which an employer can resist a claim for the full contractual remuneration other than the establishment of a counterclaim for damages."
The reference to "interdependent obligations" in my view is an important reference. There will be cases where it is necessary to analyse whether the obligation to pay, for example, and indeed in this case whether the obligation to provide work, is an interdependent obligation, ie one which only arises if the employee or the other party to the contract is fulfilling his obligations under the contract. It seems to me important to appreciate that to a large extent the authorities to which we have been referred are not laying down general principles of law; they are concerned with the proper interpretation of particular contracts as it happens in the employer/employee context. If one is concerned with the proper interpretation of contracts and what obligations they impose, the same will be true in a principal and agent contract. One is concerned first to interpret the contract and see where the obligations lie, and who has the obligations and at what stage, and in particular whether obligations are interdependent. And again, I stress that one is concerned in the first instance with questions of arguability and how strong the case. Then one is concerned at the second stage with the balance of convenience and with the exercise of a discretion.
"SLH shall be entitled to suspend this Agreement forthwith by written notice to the Agent and shall inform the FSA of any breaches of the Rules if SLH reasonably believes that the agent is suspected of mis-selling or malpractice, or fails to meet SLH's advertising, selling or licensing standards; or is otherwise acting or has acted in breach of the terms of the Agreement or the Rules.
9.2 SLH shall suspend payment of Commission for such period as SLH considers necessary in order to carry out a full investigation.
9.3. SLH will not be liable to the agent for any loss of income suffered by the Agent as a result of suspension in terms of this clause 9."
Lord Justice Longmore:
Lord Justice Jacob:
Order: Appeal dismissed.