| Commentary

(3) Derivation

| Commentary

(3)     Derivation

Arguably there are three strands running through the case law which have culminated in the T&C term being recognised as an important (arguably one of the really fundamental) implied terms in the contract of employment. The early cases hinted at the existence of a contractual duty on the part of the employer and the employee to treat each other with due respect and civility; in a sense, employer and employee were equally obligated to be loyal to one another (Lord Denning in Woods v WM Car Services (Peterborough) Ltd [1982] IRLR 413, CA, said: 'Just as a servant must be good and faithful, so an employer must be good and considerate'). Another way of looking at this, evidenced by decisions at the time, was that there was an obligation of reasonableness. An employer does not necessarily contract to be reasonable but, arguably, he does contract not to behave in a wholly unreasonable manner (British Aircraft Corporation v Austin [1978] IRLR 332, EAT):

''If employers behave in a way which is not in accordance with good industrial relations practice to such an extent that the situation is intolerable or the situation is that the employee cannot really be expected to put up with it any longer, it will very often be the case perhaps not always but certainly very often … that by behaving in that way, the employers have behaved in breach of contract because it must ordinarily be an implied term of the contract

To continue reading
Analyse the law and clarify obscure passages all within a practical context.