| Commentary

(11) Ultra vires

| Commentary

(11)     Ultra vires

Allied to the issue of illegality but distinct from it, there may be questions as to the vires of certain contractual provisions or, indeed, of the contract itself. This has arisen in a small number of cases but can raise difficult points of practical importance (especially, though not necessarily exclusively, in public sector employment) and would benefit from further analysis at appellate level.

The first possibility is that a particular term within a contract of employment could be argued to be ultra vires the employer and so unenforceable by the employee. The clearest example of this (in an area regularly subject to hostile coverage in the press) is in relation to generous pay-offs to senior employees in public employment. In Hinckley & Bosworth Borough Council v Shaw [2000] LGR 9, QBD an increase in salary for a departing employee purely for the purpose of enhancing his imminent redundancy rights was struck down as ultra vires and therefore unenforceable. Perhaps more significantly, the issue arose in Gibb v Maidstone & Tunbridge Wells NHS Trust [2010] IRLR 702, CA in a newsworthy case of a terminal payment. The Healthcare Commission was due to produce a highly critical report on the

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