Gunton v Richmond upon Thames LBC, 1980 WL 149489 (1980)

For educational use only

Norman George Gunton v The Mayor Aldermen and Burgesses
of the London Borough of Richmond-Upon-Thames
Positive/Neutral Judicial Consideration

Court
Court of Appeal (Civil Division)

Judgment Date
3 July 1980
1976 G No. 562

In the Supreme Court of Judicature

Court of Appeal (Civil Division)

On Appeal from the High Court of Justice

Chancery Division Group B

1980 WL 149489

Lord Justice Buckley Lord Justice Shaw and Lord Justice Brightman

Thursday 3rd July 1980

Representation

MR. JAMES MITCHELL and MR. EDWARD BAILEY (instructed by Messrs. Sharpe, Pritchard & Co., Solicitors, London
WC2B 6TZ, agents for Mr. A.W.B. Goode, Town Clerk & Chief Executive of the Defendant Council) appeared on behalf
of the Defendants (Appellants).
MR. JAMES GOUDIE (instructed by Messrs. Bartlett & Gluckstein Crawley & de Reya, Solicitors, London W1V OAT)
appeared on behalf of the Plaintiff (Respondent).

JUDGMENT

LORD JUSTICE BUCKLEY:

I have asked Lord Justice Shaw to deliver the first judgment on this appeal.

LORD JUSTICE SHAW:

This is an appeal by the defendants in the action (whom I shall call “the Borough” ) against a judgment of His Honour Judge
Rubin Q.C., sitting as a Deputy High Court Judge of the Chancery Division, which he gave on 26th October 1978. By that
judgment he granted declaratory relief to the plaintiff (whom I shall call “Mr. Gunton” ) in relation to his contract of service
with the Borough. By his cross-notice Mr. Gunton asks this Court to enlarge the scope of the declaratory order made by the
learned judge.

The history of the matter goes back for some years. The Borough, through its Education Department, was responsible at material
times for the administration of the Twickenham College of Technology, to which I shall refer as “the College” . In 1968 they
were seeking a registrar for that institution. Mr. Gunton applied for the position and was successful. On 3rd May, 1968 the Town
Clerk for the Borough wrote to Mr. Gunton in these terms: “Dear Sir, I confirm your appointment as a Registrar in the Education

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Department, initially at Twickenham College of Technology with effect from 1st July 1968. Your annual commencing salary
will be” – and that is set out, with the addition of London Weighting.

“Your appointment will be terminable by one month's notice in writing on either side and will be subject to the National Scheme
of Conditions of Service for Local Authorities A.P.T. and Clerical Services which will govern your period of probationary
service and any entitlements during holidays and sickness, and to any regulations which may be made by this Council and in
force from time to time … It is a condition of employment that you may be subject to transfer to any other establishment within
the Borough should the need arise“ .

Mr. Gunton responded promptly. On 4th May 1968 he wrote to the Town Clerk thanking him for confirming the appointment,
and thereafter duly commenced in the employment of the Borough at the College in the capacity of Registrar. As appears from
the Town Clerk's letter the contract of service thus brought about was to be subject to the National Conditions of Service for Local
Authorities and to any regulations made from time to time by the Council of the Borough, who were the nominal employers.
There was explicit provision for the termination of the appointment by one month's notice on either side. It is common ground
that there was incorporated a disciplinary code entitled “Regulations as to Staff Discipline” , which prescribed the procedure
to be followed in regard to the suspension and dismissal of officers for breaches of discipline. That procedure involved a series
of stages including, in cases of suspension or dismissal, a hearing by an appeals committee of which the employee concerned
must be given not less than a week's notice in writing. It is manifest that the course of the steps or stages to be taken will
generally be prolonged beyond a month from the time when they are initiated. How is this code as to dismissal for breaches of
discipline to be reconciled with the express provision for the termination of Mr. Gunton's contract of service by one month's
notice on either side? A possible solution is that the code extends or varies that express provision where the Borough purports
to dismiss on disciplinary grounds, but that in any other circumstances the contract of service may be determined by reference
to the express provision. This, however, would produce a grotesque result, for it would mean that the Borough could, without
assigning any reason, terminate Mr. Gunton's employment by a month's notice, but could not, if it complained of misconduct on
his part, determine that employment save by what might prove a long protracted process. As this apparent contractual anomaly
lies at the root of the matters to be resolved in examining the judgment which is appealed, I think it as well to indicate at the
outset the view which I have formed as to the interaction of the stated contractual term of notice, and the procedure in relation
to dismissal for breaches of discipline which it is accepted forms part of Mr. Gunton's contract of employment. For myself,
I do not consider that the regulations as to staff discipline were designed to deprive the Borough of its contractual power to
determine the contract of service by one month's notice; nor in my view did they have that result. If, however, the Borough
exercised that right and was called upon before an industrial tribunal to justify a dismissal on some disciplinary ground as being
fair, it might be very difficult for the Borough to establish that the dismissal was not unfair if the code had not been followed.
Mr. Gunton would then be accorded appropriate redress by the industrial tribunal pursuant to the statutory provisions in that
regard. On the other hand, if the code had been fully observed, the onus on the Borough to demonstrate that the dismissal was
fair would be relatively easy to discharge.

With this digression I return to the history. Mr. Gunton duly took up his appointment as Registrar. At some stage he was required
by “articles of government relating to the College to act also as Clerk to the Governors” . This could hardly have added greatly
to the burdens of his office. It did not in my view constitute a distinct and separate employment, and was no more than an
extended definition of his function as Registrar.

Unhappily as time went on, Mr. Gunton's conduct in the discharge of his duties did not commend itself to his superiors in the
Department of Education of the Borough. By November 1975 the Director of Education felt constrained to recommend the
Registrar's dismissal “on the ground of his conduct being wholly inconsistent with the terms of his contract” . On the 6th of
that month the Town Clerk wrote to Mr. Gunton, saying: “As you will be aware, the appointment of Registrar is subject to such
conditions of service as the Council may determine and, in this connection, the Council's "Regulations as to staff discipline
including dismissal and suspension of officers and workmen" apply. Accordingly, I enclose a copy of these Regulations and
draw your attention to Regulation 13 as the result of the operation of which Regulation 7 and those following, as appropriate,
are brought into effect.

“Further, in accordance with Regulation 7 , I hereby convey to you the decision to recommend your dismissal from the Council's
service and give you notice of your right to appeal against this decision. If you wish so to appeal please give me notice thereof
within the period specified in Regulation 7 “ .

In taking this action, the introductory steps prescribed by the regulations as to staff discipline had been short-circuited. It may
be that they were considered to be inappropriate in the case of a senior executive like the Registrar, although he clearly came
within their scope.

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However, the reaction of Mr. Gunton was not to refute the validity or effectiveness of the dismissal foreshadowed by the
recommendation referred to in the Town Clerk's letter. Instead he wrote on the same day saying “In reply to your letter dated
6th November 1975 I give notice of appeal in accordance with Section 7 of the Regulations referred to” . An appeal committee
was duly convened and it conducted a hearing of an appeal by Mr. Gunton. He was represented and the matter was argued,
not on any technical point of compliance with the regulations but on the general merit. In adopting this course I would myself
have been prepared to hold that Mr. Gunton had waived and forgone any objection to the validity of his prospective dismissal
founded on a failure to follow the code precisely. The process of appeal was the ultimate step in determining the propriety of
the dismissal. It was a step which he sought and in which he participated.

The appeal was opened on 9th December 1975, when Mr. Gunton attended and had the advantage of being represented by a
district officer of NALGO. After being heard in part the appeal was adjourned to 12th January 1976, when Mr. Gunton again
attended and was represented this time by counsel who appeared on his behalf in this appeal. The appeal committee's decision
was adverse to Mr. Gunton. Accordingly the Town Clerk, in his capacity as Chief Executive of the Borough, wrote on the
following day giving Mr. Gunton notice that his contract was terminated on 14th February 1976. The concluding sentence of
the letter read: “As from the receipt of this letter you will not be required for the performance of any of your duties to attend
at your place of work” .

In the face of this plain intimation that he would not be permitted to perform his erstwhile functions, Mr. Gunton understandably
and sensibly kept away from the College. He regarded himself as dismissed de facto; but not, as thereafter became apparent,
de jure. On 11th February 1976 he issued a writ, by which he claimed a declaration “that the purported termination of his
appointment as Registrar and Clerk to the Governors of the College is illegal, ultra vires and void and that (he) at all material
times has been and remains Registrar and Clerk to the Governors of the College” .

In seeking this form of relief, Mr. Gunton ventured into a vexed area of the common law. It is trite enough that the wrongful
repudiation of a contract does not, in general, determine the contract. It is for the innocent party to decide whether he will treat
the contract as at an end and seek redress by way of damages, or whether he will regard the contract as still subsisting and call
for performance in accordance with the contractual terms. In the sphere of employment this basic exposition of the law is not
easy or possible to reconcile with the realities of life. While damages as a universal remedy for breach of contract may generally
serve to redress the injury done to the injured party, it may not always in itself be an adequate remedy. Specific performance in
lieu of, or as an adjunct to, damages may be both necessary and appropriate to give that party his due. It is therefore practical and
legitimate to give the party not in default the option of treating the contract as still subsisting notwithstanding the repudiation
by the other party; if he elects to treat the contract as still subsisting he may seek and obtain those supplemental or auxiliary
remedies which serve more effectively to compensate him or to provide him with a fulfilment of his expectations under the
contract. This practical basis for according an election to the injured party has no reality in relation to a contract of service
where the repudiation takes the form of an express and direct termination of the contract in contravention of its terms. I would
describe this as a total repudiation which is at once destructive of the contractual relationship. There may conceivably be a
different legal result where the repudiation is oblique and arises indirectly as, for example, where the employer seeks to change
the nature of the work required to be done or the times of employment; but I cannot see how the undertaking to employ on the
one hand, and the undertaking to serve on the other can survive an out-and-out dismissal by the employer or a complete and
intended withdrawal of his service by the employee. It has long been recognised that an order for specific performance will not
be made in relation to a contract of service. Therefore, as it seems to me, there can be no logical justification for the proposition
that a contract of service survives a total repudiation by one side or the other. If the only real redress is damages, how can its
measure or scope be affected according to whether the contract is regarded as still subsisting or as at an end? To preserve the
bare contractual relationship is an empty formality. The servant who is wrongfully dismissed cannot claim his wage for services
he is not give the opportunity of rendering; and the master whose servant refuses to serve him cannot compel that servant to
perform his contracted duties. In this context remedies and rights are inextricably bound together. It is meaningless to say that
the contract of service differs from other contracts only in relation to the availability of remedies in the event of breach. The
difference is fundamental, for there is no legal substitute for voluntary performance.

I have had the advantage of reading in draft the judgment of my Lord, Lord Justice Buckley. He has, if I may respectfully say
so, collected and collated in logical and historical development the principal authorities in this dubious field. I gratefully accept
his analysis of the cases and his survey of the ebb and flow of the tide of judicial opinion. In the end one is left in the slack
water of first principles. While it is true that arbitrary repudiation by one contracting party cannot of itself terminate a contract
so as to relieve that party of the obligation to perform his contractual obligation, the application of this principle cannot, in real
terms, go beyond those situations in which the law can compel performance. The preservation of the contractual relationship
is necessarily coterminous with the ability of the law to compel performance. Where it cannot, it is the scope of damages that

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must afford appropriate redress to the injured party. I would therefore follow those decisions cited in this sense in Lord Justice
Buckley's judgment and in particular that of Mr. Justice Donaldson in Sanders v. Ernest A. Neale Ltd. (1974) Industrial Cases
Reports, 565 .

To return to the facts of the present case, how could it profit Mr. Gunton to get the declaration he claimed? It might be a salve
to his amour propre, but it is not the function of the courts to provide this. He cannot remain idle and demand his salary for
he has not earned it. If he claims damages he must, by implication, treat his contract of service as at an end for the court will
not also reinstate him by an order for specific performance; and if he is reduced to claiming damages he must show that he
has taken reasonable steps to mitigate his loss. Indeed he has since his dismissal had other employments for short terms. If it
were necessary to look that far, I would regard his so doing as an acceptance of the Borough's repudiation of his contract of
service. I do not however, think it is necessary. The dismissal in January 1976 may have been wrongful, but in my judgment
it brought the contract to employ Mr. Gunton to a summary end. The measure of his damage is to be determined on ordinary
and elementary principles. He is not assisted in that regard by, and does not need, any declaration. It is a form of relief not
normally appropriate in relation to contracts of service. Mr. Goudie contended that a peculiar and special status attached to Mr.
Gunton's position as Clerk to the Governors because it was a public office. He submitted also that public authorities stood in
a special and more responsible situation in law in regard to contracts with employees than did ordinary employers. With all
respect to the products of his research and his persuasive presentation of them, I find no warrant for either proposition. There
are situations in which the impact of some statutory provision on the status of an employee gives rise to special considerations
and consequences. The relationship between the Borough and Mr. Gunton was free from such trammels. The only peculiarities
it presents arise from his conduct in the performance of his duties while he was at the College and the excursions in law which
he has pursued since he left that institution.

The views I have expressed in the course of this judgment differ in two respects from those which commend themselves to Lord
Justice Buckley and Lord Justice Brightman. They relate to the possible determination of a contract of service by unilateral
repudiation and to the impact of the disciplinary code on the right to determine the contract between Mr. Gunton and the College
by one month's notice. As I, though diffidently, maintain the view I have stated, it may be as well to point out that the practical
outcome, in the circumstances of this case, is virtually the same. Whether Mr. Gunton is entitled to damages because on the
one hand his contract was not determined by a valid notice, or because on the other hand, although it was so determined, he
suffered damage as a result of the code not having been observed, the measure of damages would be much the same. This is
plainly demonstrated by the time-scale set out in the judgment of Lord Justice Brightman which I have had the advantage of
reading in draft.

I would accordingly respectfully agree that the declaration which will be proposed by Lord Justice Buckley in the course of his
judgment meets the justice of this case, and I would substitute it for the declaration made by the learned judge.

LORD JUSTICE BUCKLEY:

This case involves an interesting question on the law of master and servant, upon which there has been much judicial difference
of opinion. That question is whether the wrongful dismissal of a servant puts an immediate end to the contract of service, or
whether it operates as a repudiation of the contract by the master which results in determination of the contract only when that
repudiation is accepted by the servant.

Before I come to that question I should first say something about the terms of the plaintiff's contract of service as to its
determination by notice.

The letter of appointment dated 3rd May 1968 (Document 114) expressly stated that the appointment would be terminable by
one month's notice in writing on either side. It also stated that the appointment would be subject to any regulations which might
be made by the Council and in force from time to time. At a later date in, I think, July 1972, the Council adopted “Regulations
as to Staff Discipline including Dismissal and Suspension of Officers and Workmen” (Document 79). It is common ground that
these Regulations thereupon became part of the terms of the plaintiff's employment. The effect of this in the learned judge's
view was to fetter the Council's power to dismiss the plaintiff on a month's notice to the extent necessary to give effect to
the Regulations (Transcript of the judgment, page 7 at B). It seems that the judge thought that the consequence of this was to
abrogate the power of the Council to dismiss the plaintiff on a month's notice, for he directed that the inquiry as to damages for
wrongful dismissal which he ordered should be conducted on the basis that the plaintiff was entitled to remain in the Council's
employment until the normal retirement age for a servant of his standing, unless in the meantime he became redundant or
became liable to be dismissed under the disciplinary procedure incorporated into his contract of service (Judgment page 16 at

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F). That direction seems to be consistent only with the view that the Council no longer had power to terminate the contract on
a month's notice otherwise than at normal retirement age, on grounds of redundancy, or on disciplinary grounds. I feel unable
to accept this view, for it seems to me that the express term about notice in the letter of appointment should only be treated as
modified, if at all, by Regulations subsequently adopted by the Council to the extent that such Regulations are irreconcilable
with the continued operation of the express term. The adoption of the disciplinary Regulations does not appear to me to be
in any respect inconsistent with the continued power of the Council to dismiss the plaintiff on a month's notice upon grounds
other than disciplinary grounds. I am, however, myself of the opinion that the adoption of the disciplinary Regulations and
their consequent incorporation in the plaintiff's contract of service did disenable the Council from dismissing the plaintiff on
disciplinary grounds until the procedure prescribed by those Regulations had been carried out. The defendant Council accepts
that in the present case that procedure was not fully carried out, although it is fair to say that the extent of the failure does not
seem to me to have been such as to prejudice the plaintiff in any important respect, for he was afforded an opportunity to appeal
against his dismissal and was given what appears to be accepted as having been a fair hearing. The judge reached the conclusion
that, since the Council had not fully complied with the Regulations, the letter of 13th January 1976 was not effective lawfully
to determine the plaintiff's contract of service. There is no appeal against that part of his decision. Consequently I proceed upon
the basis that the Council's dismissal of the plaintiff was wrongful. It was nevertheless a dismissal and de facto it brought the
plaintiff's employment by the Council to an end.

It is at this stage that the question to which I referred at the outset of this judgment arises. In Vine v. National Dock Labour Board,
(1956) 1 Queen's Bench, 658 , Lord Justice Jenkins said at 674: “But in the ordinary case of master and servant the repudiation
or the wrongful dismissal puts an end to the contract, and the contract having been wrongfully put an end to a claim for damages
arises. It is necessarily a claim for damages and nothing more. The nature of the bargain is such that it can be nothing more” .
That was not an ordinary master and servant case: the plaintiff was a dock labourer employed in a pool of available dock labour
under a statutory scheme. The defendant Board was the employer of all the men in the pool, but they worked for shipowners or
charterers to whom they were allocated by the Board. Unless a man was employed in the pool he could not earn his living as a
stevedore in the port at all. The observation which I have quoted from Lord Justice Jenkins' judgment was consequently no more
than an obiter dictum. It was, however, approved by the Lord Chancellor when Vine's case was before the House of Lords on
appeal; (1957) Appeal Cases, 488, at 500 , when Viscount Kilmuir, Lord Chancellor, said: “This is an entirely different situation
from the ordinary master and servant case; there, if the master wrongfully dismisses the servant either summarily or by giving
insufficient notice, the employment is effectively terminated, albeit in breach of contract” . This also was an obiter dictum. I
do not think that the Lord Chancellor should be understood as saying anything different from what Lord Justice Jenkins, with
whom he expressed entire agreement, had said, although it might, I suppose, be suggested that Lord Kilmuir was speaking only
of the end of the de facto employment, whereas the Lord Justice was speaking of the end of the contract of service.

The next case in chronological sequence which I should mention is Francis v. Kuala Lumpur Councillors, (1962) 1 Weekly
Law Reports, 1411 , a case before the Judicial Committee of the Privy Council. The plaintiff, Francis, was employed by the
defendant Municipal Council as a clerk. The Council purported to dismiss him. This dismissal was held to be ultra vires because
by the terms of the ordinance establishing the Council the only power to dismiss the plaintiff was vested not in the Council
but in its President. The plaintiff claimed a declaration that he was still employed by the municipality, his dismissal having
been a nullity. The Judicial Committee said (at page 1417): “Their Lordships consider that it is beyond doubt that on October
1 1957 there was de facto a dismissal of the appellant by his employers the respondents. On that date he was excluded from
the Council's premises. Since then he has not done any work for the Council. In these circumstances it seems to their Lordships
that the appellant must be treated as having been wrongly dismissed on October 1 1957 and that his remedy lies in a claim for
damages. It would be wholly unreal to accede to the contention that since October 1 1957 he had continued to be, and that he
still continues to be, in the employment of the respondents” . So far the reasoning of the Judicial Committee appears to me to be
consistent, or at least reconcilable, with Lord Justice Jenkins' dictum. The Judicial Committee, however, went on to say (at the
foot of page 1417): “In their Lordships' view, when there has been a purported termination of a contract of service a declaration
to the effect that the contract of service still subsists will rarely be made. This is a consequence of the general principle of
law that the courts will not grant specific performance of contracts of service. Special circumstances will be required before
such a declaration is made and its making will normally be in the discretion of the court. In their Lordships' view there are no
circumstances in the present case which would make it either just or proper to make such a declaration” . This clearly implies
that there may be circumstances in which a purported termination of a contract of service may not in law determine the contract.
The Judicial Committee could hardly have held otherwise in the face of the decision of the House of Lords in Vine's case, but
they emphasised that in the view of the Committee such a declaration should only be made in special circumstances. In Vine's
case the special circumstance was the statutory nature of the National Dock Labour Scheme, which gave the plaintiff a statutory
status over and above his rights under his contract of service, so that as the judgments in that case make plain, Vine's case was not
just an ordinary master and servant case. In Francis' case on the other hand the Judicial Committee declined to advise the grant

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of a declaration notwithstanding that no notice of dismissal had been given by the only person competent to dismiss the plaintiff,
so that the relation of master and servant had been ended only by the de facto exclusion of the plaintiff from his employment.

Denmark Productions Ltd. v. Boscobel Productions Ltd., (1969) 1 Queen's Bench, 699 , was not a case of a contract of
personal service but of a contract for services. Nevertheless both Lord Justice Harman and Lord Justice Salmon referred to the
consequences of wrongful dismissal of an employee under an ordinary contract of personal service. Lord Justice Harman said
(at page 737 at E): “An employee dismissed in breach of his contract of employment cannot choose to treat the contract as
subsisting and sue for an account of profits which he would have earned to the end of the contractual period; he must sue for
damages for the wrongful dismissal and must, of course, mitigate those damages so far as he reasonably can” . This appears
to me to be entirely consistent with Lord Justice Jenkins' dictum. Lord Justice Salmon employed language which is perhaps
not quite so explicit, but still appears to me to concur with Lord Justice Jenkins' view. He said (at page 726 at C): “It has long
been well settled that, if a man employed under a contract of personal service is wrongfully dismissed, he has no claim for
remuneration due under the contract after the repudiation. His only money claim is for damages for having been prevented from
earning his remuneration … His sole money claim is for damages and he must do everything he reasonably can to mitigate
them” . So far the tide of opinion, as it seems to me, ran strongly in the direction set by Lord Justice Jenkins.

In 1971, however, it turned. In Decro-Wall International S.A. v. Practitioners in Marketing Ltd., (1971) 1 Weekly Law Reports,
361 , Lord Justice Salmon said (at page 369 at H): “I doubt whether a wrongful dismissal brings a contract of service to an end
in law, although no doubt in practice it does. Under such a contract a servant has a right to remuneration, including what are
sometimes called fringe benefits, in return for services. If the master, in breach of contract, refuses to employ the servant, it is trite
law that the contract will not be specifically enforced. As I hope I made plain in the Denmark Productions case, the only result
is that the servant, albeit he has been prevented from rendering services by the master's breach, cannot recover remuneration
under the contract because he has not earned it. He has not rendered the services for which remuneration is payable. His only
money claim is for damages for being wrongfully prevented from earning his remuneration. And like anyone else claiming
damages for breach of contract he is under a duty to take reasonable steps to minimise the loss he has suffered through the
breach. He must do his best to find suitable alternative employment. If he does not do so, he prejudices his claim for damages.
I doubt whether, in law, a contract of service can be unilaterily determined by the master's breach” . Lord Justice Sachs (at
page 375 at C to page 376 at E) expressed a similar view. Both Lords Justices, however, recognised that the dismissed servant's
remedy must lie only in damages and that he could not sue in debt for remuneration under the contract in respect of any period
after his employment had actually ceased. Once again, the case was not concerned with a contract of personal service, and the
observations to which I have referred were obiter.

The next case to be mentioned, Hill v. C.A. Parsons Ltd., (1972) 1 Chancery, 305 , was a decision on a contract of personal
service, but an unusual one. The defendants dismissed the plaintiff from their service. They gave only one month's notice, which
was held to be too short, so that the dismissal was wrongful. The defendants had been unwilling to dismiss the plaintiff and
were only induced to do so by organised industrial pressure. They were quite willing to re-employ him if they could legitimately
and practically do so. The plaintiff sought an interlocutory injunction to restrain the defendants until trial or further order from
implementing the notice of dismissal. The defendants' primary submission was that a wrongful repudiation of a contract of
service terminates that contract irrespective of whether or not the other party elects to accept it. Lord Justice Sachs swam strongly
with the anti-Jenkins tide. At page 319 he said: “In ( The Denmark Productions case) it was not necessary to determine the point
which is now once more under discussion: nor, this being an interlocutory appeal, is it strictly necessary here. But having now
heard the matter so well argued again it is only right to say that I feel reinforced in the view, of which I am now convinced,
that the defendants' primary contention is wrong” . Lord Denning, Master of the Rolls, on the other hand, may be described as
having been content to remain in the slack water between ebb and flow. At page 314 at B he said: “Suppose, however, that the
master insists on the employment terminating on the named day? What is the consequence in law? In the ordinary course of
things, the relationship of master and servant thereupon comes to an end: for it is inconsistent with the confidential nature of the
relationship that it should continue contrary to the will of one of the parties thereto” . He then referred to what Lord Kilmuir said
in Vine's case and proceeded: “Accordingly, the servant cannot claim specific performance of the contract of employment. Nor
can he claim wages as such after the relationship has been determined. He is left to his remedy in damages against the master
for breach of the contract to continue the relationship for the contractual period. He gets damages for the time he would have
served if he had been given proper notice less, of course, anything he has, or ought to have, earned in alternative employment” .
He went on, however, to make plain that in his view de facto dismissal did not always put an end to the relationship, which
can be consistent only with the view that de facto dismissal does not in all circumstances automatically terminate the contract
of master and servant. Lord Justice Stamp assumed for the purpose of his judgment, without expressing an opinion upon the
point, that the plaintiff's contract of service was still subsisting, the plaintiff not having accepted the defendant's repudiation. In
the event the court granted an interlocutory injunction restraining the defendant from relying on the abortive notice.

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In Sanders v. Ernest A. Neale Ltd., (1974) Industrial Cases Reports, 565 , Mr. Justice Donaldson, delivering the judgment of
the National Industrial Relations Court, distinguished Hill v. Parsons as a case where, notwithstanding the wrongful dismissal,
the mutual confidence of the parties continued. The court held (at page 571 at F) that wrongful dismissal terminates a contract
of personal service without the necessity for acceptance by the injured party. This is, I think, the only decision in which the
Jenkins doctrine, if I can call it such, features as part of the ratio decidendi in what can be described as an ordinary master
and servant case.

In Ivory v. Palmer, (1975) Industrial Cases Reports, 340 , Lords Justices Cairns and Roskill were able to avoid committing
themselves to either view on the disputed question, because they found themselves able to hold that the defendant, who had
been summarily dismissed by the plaintiff and was claiming damages for wrongful dismissal, had in fact accepted the dismissal
(Lord Justice Cairns at page 346 at F; Lord Justice Roskill at page 352 at A). Lord Justice Browne, on the other hand, held (at
page 354 at H) that the ordinary doctrine of repudiation and acceptance was not applicable to contracts of personal service.

Finally in Thomas Marshall (Exports) Ltd. v. Guinle, (1978) Industrial Cases Reports, 905 , Vice-Chancellor Megarry, in a
judgment in which he usefully reviewed the authorities, held (see page 917 at D and page 921 at E) that a contract of personal
service was no exception to the general rule that repudiation did not automatically discharge the contract.

So there are two decisions at what I may perhaps (somewhat inaccurately) call first instance level, namely, Sanders v. Neale and
Thomas Marshall v. Guinle , one of which goes one way on the question under discussion and one the other way; a decision in
this court in Hill v. Parsons (which I think Lord Justice Roskill in ( 1975 Industrial Cases Reports at page 351 ) rightly described
as a very special case) in which one member of this court, Lord Justice Sachs, came down firmly against wrongful dismissal
automatically putting an end to a contract of personal service, but the other two members of the court left the matter somewhat
at large; a decision of this court in Ivory v. Palmer , in which it was not found necessary to reach a decision one way or the other
on the question under discussion, but in which Lord Justice Browne clearly favoured the automatic termination view; and a
decision of the Judicial Committee of the Privy Council in which a de facto, but ultra vires, dismissal was held to give rise only
to a liability in damages for wrongful dismissal. It is worthy of note that in the case last referred to no reference is made to the
plaintiff having accepted a repudiation by the defendant Municipality of his contract of service. If, however, a dismissed servant
sues for damages for wrongful dismissal, he must by so doing accept the master's repudiation of the contract. I am inclined to
think that this may in truth be the explanation of Lord Justice Jenkins' dictum.

Mr. Mitchell has based his argument upon a submission that an unequivocal dismissal of an employee, whether by express
words or by necessary implication, of itself terminates the contract of employment.

In Howard v. Pickford Tool Co., (1951) 1 King's Bench, 417 , Lord Justice Asquith (at page 421) employed a colourful phrase:
“An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind” .
It is common ground that in respect of the generality of contracts that is good law. As Viscount Simon, Lord Chancellor, said in
Heyman v. Darwins Ltd., (1942) Appeal Cases 356 at 361 : “But repudiation by one party standing alone does not terminate the
contract. It takes two to end it, by repudiation, on the one side, and acceptance of the repudiation, on the other” . The principle
was recognised 100 years ago in such cases as Hochster v. De La Tour (1853) 2 E. & B. 678 , and Johnstone v. Milling (1886) 16
Queen's Bench Division, 460 . The basis of the doctrine is that where a party to a contract before the date for performance has
arrived evinces an intention not to perform his part of the contract, he has committed no breach until the date for performance
arrives. Nevertheless the innocent party will be relieved of his obligations under the contract, if he so chooses, so as to render
him free to arrange his affairs unhampered by the continued existence of those obligations. It is for the innocent party to elect
whether he wishes to be so relieved, which he does by accepting the repudiatory act of the guilty party as a repudiation of his,
the guilty party's, obligations under the contract. In those circumstances the innocent party may treat the guilty party as having
committed an entire breach of the contract notwithstanding that the time for performance has not yet arrived. Where the time
for performance of part of the guilty party's obligations has arrived but some of those obligations remain executory, the position
is the same as regards those obligations which remain executory as it is in respect of all the guilty party's obligations where
none of them has yet become due for performance. If the guilty party has evinced an intention not to perform those obligations
of his which remain executory, the innocent party may elect to treat himself as discharged from all obligations on his part to
perform the contract any further. He does so by accepting the guilty party's repudiation of his outstanding obligations under the
contract, in which case the innocent party may treat the guilty party as having committed an entire breach of all his outstanding
obligations under the contract notwithstanding that the time for performance of those obligations, or some of them, may not
yet have arrived.

Why should the doctrine operate differently in the case of contracts of personal service from the way in which it operates in
respect of other contracts? I for my part can discover no reason why it should do so in principle. It cannot be because the court

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will not decree specific performance of a contract of personal service, for there are innumerable kinds of contract which the
court would not order to be specifically enforced, to which the doctrine would undoubtedly apply. For similar reasons it cannot,
in my opinion, be because a contract of personal service involves a relationship of mutual confidence, or because the obligations
of a master and a servant are mutually dependent upon co-operation between the parties. If one party to a contract of personal
service were to repudiate it before the time for performance had arrived, there would be no breach of contract until the time for
performance and no cause of action until then, unless the innocent party chose to create one by accepting the repudiation. I can
only conclude that the doctrine does apply to contracts of personal service as it applies to the generality of contracts.

However, cases of wrongful dismissal in breach of a contract of personal service have certain special features. In the first place,
as the term “wrongful dismissal” implies, they always occur after the employment has begun and so involve an immediate
breach by the master of his obligation to continue to employ the servant. Secondly, a wrongful dismissal is almost invariably
repudiatory in character; it is very rarely that there can be any expectation that the master will relent and take the servant back
into his service under the contract. Thirdly, the servant cannot sue in debt under the contract for remuneration in respect of any
period after the wrongful dismissal, because the right to receive remuneration and the obligation to render services are mutually
interdependent. Fourthly, the servant must come under an immediate duty to mitigate his damages and so must almost invariably
be bound to seek other employment in fulfilment of that obligation; it would be very rarely that he could expect to find other
employment, or could mitigate his damages in any other way, which would leave him free to return to his original employer's
service at any moment, should the original employer relent. It follows, in my view, that at least as soon as the servant finds,
and enters into, other employment he must put it out of his power to perform any continuing obligations on his part to serve his
original employer. At this stage, if not earlier, the servant must, I think, be taken to have accepted his wrongful dismissal as a
repudiatory breach leading to a determination of the contract of service.

Finally, in a case of wrongful dismissal in the absence of special circumstances the damages recoverable on the footing of an
accepted repudiation must, I think, be as great as, and most probably greater than, any damages which could be recovered on
the footing of an affirmation of the contract by the innocent party and of the contract consequently remaining in operation. So,
as was recognised in the Decro-Wall case and in Ivory v. Palmer , a wrongfully dismissed servant really has, in the absence of
special circumstances, no option but to accept the master's repudiation of the contract.

It consequently seems to me that, in the absence of special circumstances, in a case of wrongful dismissal the court should
easily infer that the innocent party has accepted the guilty party's repudiation of the contract. I do not think, however, that it is
impossible that in some cases incidental or collateral terms might cause the injured party to want to keep the contract on foot.

In the present case the plaintiff has accepted the repudiation. He did so at the trial, if not earlier.

Where a servant is wrongfully dismissed, he is entitled, subject to mitigation, to damages equivalent to the wages he would have
earned under the contract from the date of dismissal to the end of the contract. The date when the contract would have come to
an end, however, must be ascertained on the assumption that the employer would have exercised any power he may have had
to bring the contract to an end in the way most beneficial to himself; that is to say, that he would have determined the contract
at the earliest date at which he could properly do so. See McGregor on Damages, 13th Edition, paragraphs 884, 886 and 888.

If a master, who is entitled to dismiss a servant on not less than three months' notice, wrongfully purports to dismiss the servant
summarily, the dismissal, being wrongful, is a nullity and the servant can recover as damages for breach of contract three months'
remuneration and no more, subject to mitigation; that is to say, remuneration for the three months following the summary
dismissal. If the master wrongfully purports to dismiss the servant on a month's notice and continues to employ him and pay him
during that month, no breach occurs until the servant is excluded from his employment at the end of the month, in which case
he would be entitled, subject to mitigation, to damages equivalent to three months' remuneration from the date of exclusion. If
the master were to pay the servant one month's remuneration in lieu of notice and were to exclude him from his employment
forthwith, there would be an immediate breach of the contract by the master; the servant would be entitled to three months'
remuneration by way of damages, but would have to give credit for the one month's remuneration paid in lieu of notice.

Suppose, however, that the master were to dismiss the servant summarily or on a month's notice, and the facts were such as
to justify the view that the servant did not accept the master's repudiation of the contract until the end of 10 weeks from the
servant's exclusion from his employment. In such a case, if I am right in supposing acceptance of a repudiation to be requisite
in master and servant cases, the master would be guilty of a breach of contract continuing de die in diem for refusing to offer
the servant employment from the date of exclusion down to the date of acceptance, and thereafter for damages on the basis of
a wrongful repudiation of the contract. Could the servant properly claim damages under the second head in relation to a period
of three months from the date of acceptance as well as damages under the first head in relation to the 10 week period? In my

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judgment, he clearly could not. His cause of action would have arisen when he was wrongfully excluded from his employment.
The subsequent acceptance of the repudiation would not create a new cause of action, although it might affect the remedy
available for that cause of action. The question must, I think, be for how long the servant could have insisted at the date of the
commencement of his cause of action upon being continued by the master in his employment.

In the present case, in my view, the Council could, on 13th January 1976, have determined the plaintiff's contract of service on
14th February 1976 without assigning any reason or for any given reason other than a disciplinary reason. They did not, however,
do so. It is common ground that the letter of 13th January 1976 purported to relate the plaintiff's dismissal to disciplinary matters.
Mr. Mitchell, as I understood his argument, submitted that that circumstance was not significant; the plaintiff received one
month's notice, which was all that he was entitled to insist upon. As I have already indicated, I feel unable to accept that view
because, in my opinion, the effect of the incorporation in the contract of the disciplinary regulations was to entitle the plaintiff
not to be dismissed on disciplinary grounds until the disciplinary procedures prescribed by the Regulations had been carried
out. Some of the preliminary stages of those procedures never were carried out. Accordingly, in my judgment, the plaintiff
was entitled at 14th January 1976, when he was excluded from his employment, to insist upon a right not to be dismissed on
disciplinary grounds until the disciplinary procedures were re-commenced and carried out in due order but with reasonable
expedition. Consequently in my view the period by reference to which the amount of damages recovered by the plaintiff in
this case should be assessed is a reasonable period from 14th January 1976 for carrying out those procedures, plus one month,
the plaintiff giving credit for one month's salary which he received in respect of the month ended 14th February 1976 and for
anything earned in other employment during the period.

Mr. Goudie referred us to a number of cases in which employers of persons in the public service, such as school teachers, were
held to be disentitled to dismiss employees otherwise than in accordance with particular procedures or upon limited grounds. I
do not find those authorities helpful in the present case, in which, as it seems to me, the plaintiff's rights were purely contractual.
They were not entrenched by any statutory or other extra-contractual provisions. Nor, in my opinion, was the discretionary
power of the Council to dismiss the plaintiff on a month's notice limited in any way apart from the terms of the contract of
employment itself, relating to disciplinary matters. It was suggested that the plaintiff's position as clerk to the Governors was
an office in respect of which he had some particular status. I feel unable to take this view. The plaintiff's employment was as a
registrar in the Education Department of the Council. He was initially assigned to the position of registrar at the Twickenham
College of Technology. The articles of government of the Twickenham College, which came into operation on 1st April 1972,
provided in paragraph 2(E) “The registrar of the College shall act as clerk to the Governors” . The effect of this article, in my
view, was not to invest the plaintiff with an office as clerk to the Governors, but merely to provide that the registrar from time
to time of the College should perform the functions of clerk to the Governors. The Council could, in my view, quite properly
have transferred the plaintiff at any time from his post as registrar to the Twickenham College of Technology to any other
registrarship within their educational department. The plaintiff would thereupon have ceased to have been clothed with the duty
of discharging the functions of clerk to the Governors. The duty to act as clerk to the Governors was, I think, no more than part
of the plaintiff's duties as registrar of the College.

In my judgment, this is not a case in which any declaratory relief is really necessary; but the declaration contained in the learned
judge's order that the letter of 13th January 1976 was ineffective lawfully to determine the contract of service of the plaintiff
with the defendants as a registrar in the Education Department of the defendants and clerk to the Governors of the Twickenham
College of Technology is, in my view, correct in law and inoffensive in its effect. I see no particular reason for interfering with
that part of the order.

The next declaration contained in the order that the plaintiff is entitled if he so wishes to treat his exclusion from the service
of the defendants on 14th February 1976 as a repudiation of the contract is, in my opinion, inaccurate in the respect that the
plaintiff was in fact excluded from the service of the defendants on 14th January 1976. I would accordingly substitute that date
for 14th February 1976 in the declaration and in that part of the order directing an inquiry as to damages. I would discharge
that part of the order which directs upon what basis the inquiry should be conducted and I would substitute a direction that the
inquiry should be conducted on the basis indicated in this judgment.

I would accordingly vary the order of the learned judge to the extent which I have indicated.

LORD JUSTICE BRIGHTMAN:

I have reached the same conclusion as my Lord, Lord Justice Buckley. That is to say, the plaintiff is entitled to an order for an
inquiry as to the damages sustained by him by reason of his wrongful exclusion from the service of the defendants from 14th

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January 1976 until the expiration of a notional one month's notice served on the day when the proper disciplinary procedures,
if followed, could have been concluded. This day should be determined by estimating a reasonable period from 14th January
1976 for the purpose of expeditiously commencing, carrying out and concluding the disciplinary procedures contained in the
Regulations as to Staff Discipline, which begin at page 79 of the agreed bundle. Not all those procedures are relevant to the
estimation of this period. The relevant procedures are, in my opinion, those defined in paragraphs 3, 4 (b) and (c), 5, 6, 7, 9,
10, 11 and 12 of the Regulations. Without having heard argument, and therefore without expressing a concluded view, I have in
mind that a period of two months should be sufficient for the purpose indicated, making three months in all from 14th January.

By a letter dated 13th January 1976 the defendants purported to terminate the plaintiff's contract of employment as from 14th
February, on the basis that the plaintiff would be paid his salary down to that date but would forthwith be excluded from (the
letter says, “not required … to attend at” ) his place of work. That letter was admittedly wrongful because the defendants were
not entitled by the contract to dismiss the plaintiff on a disciplinary ground without observing the agreed disciplinary procedures,
which by an oversight and without any practical injustice to the plaintiff, were in this case disregarded. The defendants' letter
in my view involved an immediate breach of contract by the defendants because the plaintiff, although to be paid for a month,
was immediately excluded from his place of work. I should however add that, like my Lord, Lord Justice Shaw, I would have
been prepared to hold that Mr. Gunton had waived any objection to the validity of the process which he sought and in which
he participated.

By his writ issued on 11th February 1976 the plaintiff sought a declaration that the purported termination of his contract of
employment was unlawful. In my opinion there is no objection to that declaration for what it may be worth. He also sought
a declaration that he “at all material times has been and remains Registrar and Clerk to the Governors of the College” . In
the alternative the plaintiff claims, by amendment, an inquiry as to damages on the basis that he was entitled to remain in
the defendants' employment until normal retirement age unless (i) he became redundant, or (ii) he became liable to dismissal
under the disciplinary procedure, due allowance being made for the plaintiff's duty to mitigate his loss by seeking alternative
employment.

By his order the learned Deputy High Court Judge declared that the letter of 13th January 1976 was ineffective lawfully to
determine the plaintiff's contract. His order then recorded that the plaintiff by his counsel elected to treat his exclusion from
the defendants' service on 14th February 1976 as a repudiation of his contract of service, and elected to claim damages at
common law. However, I would myself have thought that the contract was repudiated from 14th January, when the plaintiff
was excluded from his place of work, but the point is in practice of no materiality because the plaintiff was paid his entire
salary until 14th February.

The order then directed that the inquiry should be conducted “on the basis that the plaintiff was entitled to remain in the
employment of the defendants until the normal retirement age for a servant of his standing unless in the meantime he became
redundant or became liable to be dismissed under the disciplinary procedure incorporated into his contract of service, due
allowance being made for the duty of the plaintiff to mitigate his loss by seeking suitable alternative employment” . I cannot
see any justification for that entitlement.

The notice of appeal raises one challenge only to that order. It asserts that the inquiry – “should be conducted upon the basis
that, pursuant to the aforesaid contract of service, the defendants were entitled at any time to give the plaintiff one month's
notice in writing of termination thereof” . So the defendants' claim amounts to this, that the admitted invalidity of the notice
served on 13th January 1976 can be disregarded because the plaintiff could on that day have been dismissed on one month's
notice on non-disciplinary grounds.

An employee's remedy, if he is unlawfully dismissed by his employer, is damages. He cannot obtain an order for specific
performance because it is not available to compel performance of a contract of service against an unwilling employer. He cannot
sue for his salary or wages as such. By necessity his remedy is confined to damages. An unlawful dismissal is ex hypothesi a
premature dismissal. The damages recoverable, having regard to the plaintiff's duty to mitigate his damages, are the moneys
needed to compensate the plaintiff for his net loss of salary or wages during the period for which the defendant was bound by his
contract to employ the plaintiff. In the case of a fixed term contract, the assessment will extend over that fixed term. In the case
of a contract terminable by notice, the assessment will extend over the period which would have had to elapse before the plaintiff
could lawfully have dismissed the defendant: see McGregor on Damages, 13th Edition, paragraph 884 to paragraph 888.

So the first inquiry which has to be made in this case is whether the plaintiff was serving under a fixed term contract, or a
contract determinable by notice, or some other type of contract.

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The plaintiff's counsel sought to argue that there was some special law which applied to contracts of service entered into by a
statutory authority with its employees. He called it an aspect of administrative law. A statutory authority, he submitted, could
not give an employee notice of dismissal without some good reason. Such a notice would be ultra vires, because a statutory
authority had a statutory duty to act with propriety.

I accept that a statutory authority has to act reasonably and that it should exercise reasonably its statutory powers to hire and
fire its servants. But I do not know of any principle of law which confers on a public employee a greater security of tenure than
is enjoyed under a comparable contract of employment with a non-statutory authority.

The only problem on this aspect of the case which arises is that the plaintiff's letter of appointment from the defendants stated that
“your appointment will be terminable by one month's notice on either side” ; while at the same time the contract of employment
incorporated “Regulations as to Staff Discipline” applicable to allegations of inefficiency, misconduct or indiscipline. These
Regulations have the effect of defining the steps required to be taken in the interests of the employer and the employee before the
head of department can recommend dismissal to the appropriate committee of the defendants. The result was that the defendants
had under the contract a right to dismiss the plaintiff on one month's notice, but the defendants could not lawfully act on a
recommendation for dismissal on a disciplinary ground unless the disciplinary procedure had been followed; the completion of
this procedure was a condition precedent to a valid recommendation for dismissal on a disciplinary ground.

What then is the legal position if a notice of requisite contractual length is given to determine an employee's contract of service,
but such notice is the result of a recommendation improperly made and upon which the defendant could not lawfully act? The
plaintiff has suffered a wrong, and so far as damages can do so, he must be put in the same position as if the wrong had not been
done. To assess the damages, the invalid notice should be disregarded. It was a nullity. It should be assumed that the defendants
gave, as they could have done, a valid one month's notice at the earliest permissible date. It was argued that a valid one month's
notice could have been given on the same day as the void one month's notice, but this proposition would make a complete
nonsense of the protection which purports to be afforded by the disciplinary code, and I reject the submission. The defendants
were intending to dismiss on a disciplinary ground. It would be inconsistent with the terms of the contract for the defendants to
be treated as entitled to give a month's notice until the day when the disciplinary procedures could have been completed.

Much argument in this case has been devoted to the vexed question of the legal result of an unlawful repudiation of a contract
of service which is not accepted by the other side. The defendants have argued, and there are many dicta in the cases which
they can turn to their advantage, that a wrongful repudiation of a contract of service results in an “automatic” termination of the
contract although the innocent party has not accepted, and indeed has expressly rejected, the attempted repudiation. If, as I think,
the defendants wrongfully repudiated the contract on 14th January 1976, the acceptance of this proposition would presumably
mean that the contract would cease to exist on 14th January and that the plaintiff became on that day entitled to damages to be
assessed by reference to the month's notice to which he was entitled under the contract, which would be offset by the month's
salary in fact paid. But I have to confess that it has never been completely clear to me where the defendants' argument logically
leads if accepted in this case. What I am clear about in my own mind is that this contract cannot be read so as to entitle the
defendants to disregard the disciplinary procedures with impunity. But I would add, in parentheses, that as I have indicated, I
think it is unlikely that the plaintiff suffered any injustice by the defendants' oversight.

It is clear beyond argument that a wrongfully dismissed employee cannot sue for his salary or wages as such, but only for
damages. It is also, in my view, equally clear that such an employee cannot assert that he still retains his employment under the
contract. If a servant is dismissed and excluded from his employment, it is absurd to suppose that he still occupies the status of a
servant. Quite plainly he does not. The relationship of master and servant has been broken, albeit wrongfully by one side alone.
The same would apply to a contract for services, such as an agency. If a two-year agency contract is made between principal
and agent, and the principal wrongfully repudiates the contract of agency after only one year, quite plainly the agent cannot
hold himself out as still being the agent of the principal. He is not. The relationship of principal and agent has been broken. I
do not think it follows, however, from the rupture of the status of master and servant, or principal and agent, that the contract
of service, or the contract of agency, has been terminated by the wrongful act of the master or the principal. What has been
determined is only the status or relationship. So in the result the servant cannot sue in debt for his wages, which he is wrongfully
deprived of the opportunity to earn; or for his fringe benefit, such as the house which the carpenter in Ivory v. Palmer had the
right to occupy as part of his emoluments. As the relationship of master and servant is gone, the servant cannot claim the reward
for services no longer rendered. But it does not follow that every right and obligation under the contract is extinguished. An
obligation which is not of necessity dependent on the existence of the relationship of master and servant may well survive; such
as the right of the master in Thos. Marshall (Exports) Ltd. v. Guinle , that the servant should not during the term of the contract
deal on his own account with customers of the plaintiff company.

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As indicated, I am of the view that the relationship of master and servant was broken on 14th January 1976, but that this did not
deprive the plaintiff of his contractual right to be protected from a notice of dismissal for an alleged disciplinary offence before
the contractual disciplinary procedures had been duly completed. The plaintiff is therefore in my view entitled to an inquiry as
to damages on the basis which I indicated at the beginning of this judgment. I would vary the order accordingly.

LORD JUSTICE BUCKLEY:

Well, it is hard to say which side has won!

MR. BAILEY: (for Mr. Mitchell): It is indeed, my Lord.

LORD JUSTICE BUCKLEY: The appellants have not obtained what they asked for in the notice of appeal; on the other hand,
the respondent has not succeeded in holding all that he had in the court below.

MR. GOUDIE: In the present situation, my Lords, I would submit that the right order would be that each side should pay its
own costs.

LORD JUSTICE BUCKLEY: What do you suggest, Mr. Bailey?

MR. BAILEY: As your Lordships are no doubt aware, I did not address your Lordships on the argument; I am standing in for
Mr. Mitchell, and I would like to take this opportunity, with your Lordships' permission, to convey Mr. Mitchell's regrets and
apologies for not having been able to attend your Lordships' court today, owing to his having been appointed as a Commissioner.
But what concerns the defendant Council to a very large extent was the unnatural implication of the basis upon which the inquiry
was ordered by the learned judge below. If the inquiry was to be conducted on that basis, they would face a very substantial claim
indeed for damages because the plaintiff was some way from retiring age and clearly has only been able to obtain employment
at a much lower remuneration. It now follows from your Lordships' judgment that those financial implications are to a very
large extent mitigated, and I am informed by Mr. Mitchell that, although it was not the whole object of bringing the appeal –
that is not suggested – one of the most important factors in the appeal was to avoid those financial implications. Accordingly, I
would ask your Lordships to consider awarding the appellants part of their costs of this appeal, and I would suggest, subject to
anything your Lordships may wish to say, that half the costs of the appeal would be the appropriate order in the circumstances.

(Their Lordships conferred)

LORD JUSTICE BUCKLEY: Mr. Goudie, is there anything further you want to say with regard to costs?

MR. GOUDIE: Not in relation to costs, my Lord.

LORD JUSTICE BUCKLEY: Then we will make the order indicated; that is to say, we will vary the learned judge's order in
the way I indicated in my judgment, and say that the appellants should have half their costs of the appeal.

What about their costs in the court below?

MR. BAILEY: I think I would be in some difficulty in arguing for those, my Lord; as I understand it, much of the time in the
court below was taken up with argument as to the propriety or otherwise of the dismissal. I do not think I could ask for the
whole of those costs.

LORD JUSTICE BUCKLEY: Your clients were ordered to pay the costs below?

MR. BAILEY: Yes, my Lord.

LORD JUSTICE BUCKLEY: And you are not seeking any variation of that order?

MR. BAILEY: Again I would seek a variation to the extent of again asking for half the costs. I do not think I could ask for the
whole of the costs below, because so much time was taken up by arguing the point on which the defendants failed. It was a very

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difficult problem for Mr. Mitchell, who was then appearing, in that it was the only declaration that was asked for to begin with;
then the plaintiff was given leave to amend his statement of claim, claiming damages, but at no stage were the defendants ever
in a position to consider the question of a payment into court in order to protect themselves as to damages.

LORD JUSTICE BRIGHTMAN:

Can you remind me of what the issues were before the learned Deputy High Court Judge? I have rather forgotten.

MR. BAILEY: I do so with some diffidence, as I did not appear. As I understand the position, the statement of claim sought a
declaration that the plaintiff was wrongly dismissed; that was contested and the defendants failed – that is the part upon which
they failed.

LORD JUSTICE BUCKLEY:

They failed on the substance of the cause of action; what went wrong was the remedy, not the decision on the cause of action.

MR. BAILEY: Yes, indeed.

MR. GOUDIE: But before the learned judge a great deal of the time was taken up with the contest as to whether in fact the
defendants were in breach of the disciplinary proceedings in the circumstances, and of course the learned judge's finding against
them was not the subject of any appeal by them in this court.

LORD JUSTICE SHAW:

But Mr. Gunton's case in the court below was that he was still an employee of the Council; that is the real basis upon which
the trial was conducted.

MR. GOUDIE: The defendants did seek to raise arguments in the court below, as in your Lordships' court, on which they were
unsuccessful as well as ones on which they were successful. With regard to my friend's point about payment in, of course a
defendant in this situation, seeking to protect himself in relation to costs could protect himself in some other way, by some
form of offer or whatever.

In my submission, this is very much a case where, both in the court below and in this court, both parties have been successful
on some points and unsuccessful on others, and I submit that that should be reflected in the order for costs.

(Their Lordships conferred)

LORD JUSTICE BUCKLEY:

The learned judge in the court below ordered the defendants to pay the plaintiff's costs of the action; we will vary that part of
his order so that it will provide that the defendants should pay half the plaintiff's costs of the action.

MR. GOUDIE: If your Lordship pleases.

To the extent to which I have been unsuccessful in your Lordships' court, I would seek leave to appeal to the House of Lords.

LORD JUSTICE BUCKLEY: On what grounds do you ask for that leave?

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MR. GOUDIE: I ask on the ground of reopening before their Lordships those arguments that I have addressed to this court,
which have not found favour in your Lordships' judgment today.

LORD JUSTICE BUCKLEY: You mean the whole doctrine of wrongful dismissal, and what effect it has on the contract?

MR. GOUDIE: Yes, my Lord – not merely that, but certainly very much that, together with some other features.

LORD JUSTICE BRIGHTMAN:

Would you be seeking to maintain in the House of Lords that your client is still an employee? That would not be right, would it?

MR. GOUDIE: There were certainly difficulties after the end of the trial, when an election was made to attack repudiation at that
stage. If your Lordships see fit to give me leave, then obviously one would need to consider all that, and it may very well be that
leading counsel would be involved. If I may respectfully put it this way, I would like to keep all my options open at this stage.

LORD JUSTICE BRIGHTMAN: But what would you be claiming?

MR. GOUDIE: There would be argument upon both the declaratory relief and also the span of time and indeed the basis within
that period of time in relation to damages.

LORD JUSTICE BRIGHTMAN: What would you say that that span would be – until retiring age?

MR. GOUDIE: With some limitation, yes – with the qualifications that were indicated by the learned judge below.

(Their Lordships conferred)

LORD JUSTICE BUCKLEY:

We do not give leave to appeal, Mr. Goudie.

MR. GOUDIE: If your Lordship pleases.

MR. BAILEY: I have a similar application, my Lords. In my submission, your Lordships' judgment goes against the submissions
of my learned friend Mr. Mitchell when he argued the case, with regard to the very important question of the necessity of an
employee to accept a repudiation that a master had wrongfully caused, and also the question of a disciplinary code upon a
general contractual provision giving notice of a fixed period, for no reason.

LORD JUSTICE BUCKLEY: But what relief would you be seeking in the House of Lords?

MR. BAILEY: In terms of pounds and pence, my Lord, the relief would be boiled down to only the two months.

LORD JUSTICE BUCKLEY: You are speaking of the measure of damages?

MR. BAILEY: Yes, my Lord.

LORD JUSTICE SHAW:

Did Mr. Mitchell not make certain concessions in relation to the effect of the conduct of the defendants? He said that they had
failed to follow the disciplinary code, and that presented the difficulties with which they were confronted – that next time they
would be more careful.

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Gunton v Richmond upon Thames LBC, 1980 WL 149489 (1980)

MR. BAILEY: Yes, but as I understand the matter he did not say that because they failed to follow the code they were necessarily
prevented from relying on the one-month determination of the contract.

(Their Lordships conferred)

LORD JUSTICE BUCKLEY:

No, Mr. Bailey, we do not give you leave either.

LORD JUSTICE SHAW:

I hardly think that, in relation to a public authority, this situation is likely to occur.

offence before the contractual disciplinary procedures had been duly completed. The plaintiff is therefore in my view entitled
to an inquiry as to damages on the basis which I indicated at the beginning of this judgment. I would vary the order accordingly.

(Order: Order of His Honour Judge Rubin varied in the way indicated in judgment of Buckley L.J.; appellants to have half
their costs of the appeal; defendants to pay half plaintiff's costs of action; applications by both parties for leave to appeal to
House of Lords refused).

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