Any UK academics whose institutions are trying to intimidate them with threats of 100% deductions in pay for taking limited action short of a strike may wish to read this summary and explanation in the judgement of Wiluszynski v Tower Hamlets (1989). With thanks to Mary Leng for finding this. Obviously, Im not a lawyer, and this isnt legal advice, but it makes interesting reading nevertheless: Where an employer does accept partial performance, it cannot refuse to pay the employee. This principle was established by the Court of Appeal in Wiluszynski v Tower Hamlets London Borough Council 1989 ICR 493, CA. W was a housing officer employed by Tower Hamlets Council. During a pay dispute he took part in limited industrial action in the form of refusing to answer enquiries from councillors. These enquiries were only a minor part of Ws duties (at the end of the month-long strike it took him only three hours to make good the backlog). In all other respects he performed his duties normally. The Council, however, informed W that it was not prepared to accept partial performance and refused to pay him any salary at all for the period of the industrial action. W brought a claim for breach of contract, which succeeded in the High Court but was overturned by the Court of Appeal. Lord Justice Fox, giving the leading judgment, held that, in accordance with the Miles decision (above), W was not entitled to any pay because he had not been willing to perform all his contractual obligations. However, this position would have been different had the Council given W directions to work or acted in any other way which would have disentitled it from asserting that W had no right to be paid. In other words, an employer may not accept partial performance offered by an employee and then refuse to pay anything at all. The vital consideration, then, is whether the employer has made it clear to the employee that it is not accepting partial performance, and does in fact refuse to accept it. But what amounts to acceptance may not always be clear-cut. In the Wiluszynski case the Council wrote to the employee telling him that his partial performance would not be accepted and that any work he did carry out would be considered purely voluntary. It also went through something of a ritual by repeating this warning to W every morning when he turned up for work during the period of industrial action. Nevertheless, W continued to perform all but a tiny part of his contractual obligations and his manager continued to provide him with work, although this was against the express instructions of the Council. In deciding whether the Council had accepted this partial performance, the Court of Appeal stressed that it is necessary to assess the genuineness of the employers rejection of the partial performance - employers cannot simply state that they are refusing to accept it when their actions tell another story. The Court came to the conclusion that in this case W had been adequately warned that he would receive no pay unless he performed his contract to the full and the Council as a whole did nothing contrary to its avowed intention not to accept partial performance, despite the actions of Ws manager. This website (thanks Pauline for the link!) is also important: https://gov.uk/if-your-business-faces-industrial-action/strike-pay-and-working-records If you do accept partial performance, you must still pay employees for any work that they have done.
Posted on: Wed, 05 Nov 2014 10:58:56 +0000
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