Implied Duty to Provide Work

Thanks to Saul Margo of Outer Temple Chambers, who appeared for the successful employee, for writing this case summary.

The EAT, in St Ives Plymouth Limited v Haggerty, has considered whether the expectation of being given work, resulting from the practice over a period of time, can of itself constitute a legal obligation to provide some work or to perform the work provided, even where there is no duty to undertake any particular work offered or a minimum amount of work.

In a majority decision, Elias P, presiding, held that the practical commercial consequences of not providing work on the one hand or of not performing it on the other could crystallise over time into legal obligations.

The EAT relied upon the majority reasoning of the Court of Appeal in Nethermere v Gardiner but considered the impact on that Judgment of Lord Irvine’s observations in Carmichael that no terms could be implied by business efficacy unless and until the relationship itself was contractual. It was held that in Carmichael there was no express rejection of the reasoning of the majority in Nethermere and that the reasoning of the Court of Appeal should not be taken to have been overruled. The appeal was dismissed.