Employment Statutes not contractually actionable

The Employment Appeal Tribunal has delivered a powerful judgment demolishing an argument that the rights given to employees under employment statutes can also form the basis of a contractual claim (enabling employees to claim constructive dismissal whenever a statutory right is infringed).

Presiding over the Appeal Tribunal, HHJ McMullen held:

"25. The first issue in the claim...is that there is, as a matter of contract, a right which corresponds in language to the three statutory rights protective trade unionists when they carry out trade union activities. The right of action in contract is not arrived at by reason of any of the conventional tools, such as necessity, business efficacy to make the contract workable or to reflect the intentions of the parties. On the contrary, it is there because the statute provides such a right. In an engaging exchange with the bench, [Counsel] said "as a matter of logic, it must be right. There is no authority on this point" In an equally engaging exchange, Mr Bowers said it must be wrong.

"26. Let us just paint a picture of how this would work if [Counsel] were right. Today, across the road in the Strand, there would be sitting half a dozen courts presided over by judges of the Queen's Bench, determining, for example, whether an employee of a London borough had been discriminated against on grounds of his or her race. Some of these claims would be very old, because the time limit would be not three months but six years. The expertise in deadling with these matters, which is presently in the hands of employment tribunals...would be missing... So would the informal and user-friendly regime in which such claims are heard presently by employment tribunal. Any breach of the Race Relations Act 1976, on this thesis, would be actionable as a breach of contract. There would, of course, be the issue of costs. In a case where there had been racial harassment, one person missing from the drama would be the very perpetrator, since, whereas in an employment t! ribunal such person can be brought in as an aider and abetter, in a breach of contract claim this person would be absent.

"27. That is just a brief snapshot as to why [Counsel's] proposition is wholly misconceived in our judgment. It cannot be right that, as she puts it, the range of rights set out in Professor Peter Walltington's estimable handbook, which takes pride of place on our bench, constitutes a contractual rulebook, actionable at the suit of an employee for every single breach that there is."

HHJ McMullen goes on to make it clear that there are a few exceptions where statutes do lead to the implication of contractual terms.

Doherty v British Midland Airways, EAT 2005

[Thanks to John Bowers QC of Littleton Chambers, who represented British Midland, for informing me of this decision]