(g) Effect of partial performance on pay

(g)     Effect of partial performance on pay

So far we have been considering cases where there has been a total stoppage of work. However, the employee may tender partial performance, in which case different principles may apply when determining the effect on pay.

(i)     Has the employer accepted part performance?

Many of the relevant cases involve industrial action short of a strike. Clearly such action can take many forms. So for example where industrial action does not amount to a breach of contract (for example, where the employee refuses to volunteer for discretionary overtime) then wages should be paid in full. That contrasts with the situation where a worker tenders partial performance by deliberately performing his contract in a less than proper manner and is therefore in breach of contract. This would occur, for example, where the employee fails to perform all his contractual duties, works for less than his contractual hours on a particular day or where the industrial action breaches the implied duty of co-operation (as happened in Secretary of State for Employment v ASLEF (No. 2) [1972] 2 QB 455, [1972] ICR 19, CA, although cf the Privy Council decision in Burgess v Stevedoring Services Ltd [2002] UKPC 39, [2002] IRLR 810). In such a situation the consequences of part performance appear to depend upon whether the employer can be said to have accepted the tendered performance as sufficient performance of