Requirement To Enter Into ‘Friendly Discussion’ Before Arbitration Was Enforceable

In a controversial decision, at odds with the law, the High Court held that an obligation on parties to enter into “friendly discussion” before embarking upon arbitration was an enforceable term of the contract. In this case, the parties had entered into “friendly discussion” so, the arbitrators had jurisdiction.Whilst this is not an employment case, it is a very useful term for commercial contracts and if used in employment contracts (i.e. before any referring claims and disputes to ACAS, this could give businesses a chance of being notified of and resolving disputes before third parties get involved.The case is Emirates Trading Agency v Prime Mineral Exports Private Ltd [2014] EWCH 2104 (Comm) and can be accessed at the link below:http://www.bailii.org/ew/cases/EWHC/Comm/2014/2104.html   Back to legal...

Damages Awards

Damages Awards Should Not Give The Claimant The Benefit Of Better Bargain Last month the High Court held that where a contract allows a defendant alternative modes of performance, defendants are entitled to the assumption that they would have only performed the minimum obligation required of them.The contract in this case allowed the defendant to perform the contract in different ways, and included the right to terminate the contract subject to paying certain sums to the claimant. The court held that it had to be assumed that if it was not for the claimant’s termination of the contract (in response to a repudiatory breach) the defendant would have exercised its own right to terminate.Whilst this is not an employment case, it is a useful authority, particularly in constructive dismissal cases where employees terminate their contract, allegedly in response to repudiatory breaches by businesses.The case is Comau v Lotus Lightweight Structures Ltd (unreported), Commercial Court, 27 June 2014 Mr Robin Knowles CBE QC sitting as Deputy High Court Judge.    Back to legal...

The Employers Right To Increase Punishment When An Employee Appeals A Disciplinary

A useful reminder from the court of appeal came out this week about an employer’s right, when an employee appeals a disciplinary sanction, to increase the punishment. The rule, set out by the Court of Appeal, is that unless the employer’s disciplinary policy actually sets out the employer’s right in this regard, then an increase of award should not happen.  They reasoned that an employee could appeal a final warning, be dismissed and have no further right of appeal. That would breach the ACAS Code. If this is a right you want to have, you need to write it into your policy, and allow an extra appeal level if you increase the sanction. It’s an interesting case involving a doctor and an injunction, but the kernel of the appeal point can be read at the following link:http://www.bailii.org/ew/cases/EWCA/Civ/2014/1031.html Back to legal...