From: Jordan
English <jordan.english@sjc.ox.ac.uk>
Sent: Friday 13
September 2024 16:00
To: Daniel
Friedmann; obligations@uwo.ca
Cc: Alan Bogg
Subject: Re: Tesco
Stores Ltd v Union of Shop, Distributive and Allied Workers [2024] UKSC 28
Thanks
very much Dan. I think it is, however, important to note that the paragraph 127
you attribute to Burrows and Simler is in fact from Leggatt. So it is not the
UKSC saying it, only a single judge, with which Reed disagrees.
Best,
Jordan
Sent
from Outlook for iOS
From:
Daniel Friedmann <frie@tauex.tau.ac.il>
Sent: Friday, September 13, 2024 3:28 PM
To: Jordan English <jordan.english@sjc.ox.ac.uk>;
obligations@uwo.ca <obligations@uwo.ca>
Cc: Alan Bogg <alan.bogg@bristol.ac.uk>
Subject: RE: Tesco Stores Ltd v Union of Shop, Distributive and Allied
Workers [2024] UKSC 28
The Tesco case can be viewed as a mere labour law
decision but it has broader implications. The UKSC held that there is an
implied term limiting Tesco s discretion to dismiss employees who were promised
retained pay . However,
this implied term is rooted in the concept of good faith.
The main decision, delivered by Lord Burrows and Lady
Simler, constantly referred to the concept of good faith, ultimately concluding
that:
A
contractual power, even though expressed in unqualified terms, is in general
circumscribed by an implied qualification that the power must be exercised in
good faith and not arbitrarily, capriciously or irrationally or for an improper
purpose. (at 127)
This broad
statement did not go unnoticed. Lord Reed, in his concurring opinion, expressed
reservations, and stated that it is a wider proposition than has been adopted
in earlier cases in this court (at 149).
Alan
Farnsworth in his article Good Faith in Contractual Performance (in Good
Faith and Fault in Contract Law), written some 30 years ago, discussed the
concerns in England and Canada regarding the adoption of such a general
doctrine. In the same book Jack Beatson in his Public Law Influences in
Contract Law, pointed out that one of the hall marks of English common law is
that it does not have a doctrine of abuse of rights . The concept of abuse of
rights is of course embodied in that of good faith (an employer who in
dismissing and employee did not act in good faith can be described as having
abused his power of dismissal).
English
private law still does not recognize a general principle of good faith.
However, in the years that elapsed since these articles were written the
landscape has significantly changed. The concept of good faith has gained
considerable ground, and the Tesco case marks an important milestone in its
further expansion.
Best
regards
Dan
From: Jordan English <jordan.english@sjc.ox.ac.uk>
Sent: Thursday, September 12, 2024 2:17 PM
To: obligations@uwo.ca
Cc: Alan Bogg <alan.bogg@bristol.ac.uk>
Subject: Tesco Stores Ltd v Union of Shop, Distributive and Allied
Workers [2024] UKSC 28
Dear all,
Members might be interested in the decision today of
the UKSC in Tesco Stores Ltd v Union of Shop, Distributive and Allied
Workers [2024] UKSC 28.
The case concerns Tesco workers who were induced to
relocate to other sites in 2007 for the promise of retained pay . Basically,
any difference in value between their old remuneration and their new
remuneration was to be protected. The express retained pay term provided that
the retained pay would be a permanent feature of an the employees
contractual eligibility. The term was part of a collective agreement
incorporated into the employees contract of employment (either expressly or by
custom).
Suffice to say, in 2021 Tesco wanted to phase out the
retained pay obligation. As a carrot , it offered an advance payment of 18
months of retained pay in return for employees agreeing to the cessation of
their retained pay rights. The stick was that if did not agree, the contracts
would be terminated on notice pursuant to an express contractual term and the
dismissed employees would then be re-engaged under a new contract without the
retained pay benefit (a strategy known as fire and rehire ).
Allowing the appeal from the Court of Appeal, Lord
Burrows and Lady Simler (Lord Lloyd-Jones agreeing; Lord Leggatt and Lord Reed
concurring but writing separately) held:
The judgment obviously will be of interest to labour
lawyers but for doctrinal private lawyers it is also worth reading. It contains
a discussion about the approach to contractual interpretation and the
implication of terms by fact (see at [32] [57] per Burrows and Simler and
[98] [106] per Leggatt) and more interestingly (for me at least), a good
discussion about injunctions/indirect specific performance and whether specific
performance should be ordered of a contact of employment (for which the general
rule is no , but it was allowed here where there was no breakdown in trust and
confidence). This discussion is at [58] [84].
For Braganza enthusiasts, there is also a
little dialogue between Lord Leggatt and Lord Reed on this (see at [115] [120]
and [149]).
Finally, the case which although involving a
fundamental labour law dispute is, at bottom, a contract case is a good
illustration of a point Alan Bogg has been making for some time about the role
of doctrinal private law and labour law. In his words:
It
is now time for a renaissance of lawyer s law in labour law given the
relative success of strategic litigation. Historically, doctrinal scholarship
in labour law was viewed with a degree of suspicion . The underlying message of
this article rejects this fashionable view of serious legal scholarship.
Doctrinal analysis is indispensable to the scholarly enterprise in labour law.
It should take its rightful place alongside socio-legal, critical, comparative,
and philosophical modes of enquiry.
(A.
Bogg, Can We Trust the Courts in Labour Law? Stranded Between Frivolity and
Despair (2022) 38 Int.J.Comp.L.L.I.R. 103).
All best,
Jordan
Jordan English
Supernumerary Teaching Fellow in Law
St John s College, Oxford OX1 3JP
T: +44 (0)1865 270862