Illegal conduct and employment rights - a matter of contract

• Author: Jeff Cumberbatch
• Position: University College of Wales, Aberystwyth
• Pages: 201-204

CA SE NO TE

ILL EG AL CO NDU CT AND EM PLOY ME NT

RIGH TS - A MA TTE R OF CO NT RA CT

Hew ca stle Catering L td. v. Ah m e d

[19 92 ] I.C .R. 626

JEF F CUMBERBATCH*

Whether regarded as "the cornerstone o f the edifice"1 or "a blank

without intrinsic social signific ance .. . adaptable to any number of

social objectives" the use of the contract model in relation to

employment entails that that relationship is governed by principles far

better suited to the discrete purchase of carbolic smokeballs and surplus

tentage than to^the ensuring of the means of material existence by an

economic relationship o f extended duration.

There is no exception to this in the recent Court o f Appeal decision

in H ewcastle C atering Ltd. v. Ahm ed3 which goes some way in

clarifying a troublesome area o f employment law, namely the effect of

illegal conduct by an employee on the enforcement o f his statutory or

other employment rights. The court’s careful examination of the

factors relevant to a determination of what public policy would require

or, otherwise put, whether the public conscience would be affronted,4

appears to deny the proposition tha£joniy, where the contract itself is

illegal will the employee be barred in his claim,5 and to correspond

Univers ity C ollege of Wa les, Aberystwyth.

1 O.Kahn-Freund, "Legal Framework" in The Sys tem o f In dus trial Rel ation s

in Gre at B ritain (A. Flanders and H.A. Cle gg, eds .) (1954 ) 47. Rideout later

discov ered that this "cornerstone" had "a core of rubble” - Rideout, "The

Contract o f Employment", (1966) C urre nt L ega l P robl ems 11 1, 122.

2 Karl Renner, T he Ins tituti ons o f P rivat e La w a nd th eir S oci al Fu nction s

(194 9).

3 [1992] I.C .R. 626.

4 How a rd v. Sh irlsta r Con taine r Tran spor t Ltd. [19 90] 1. W .L.R. 1292.

5 Bro ode rs v. Kal kare P rope rty M ain tena nce Ltd. [1 990] I.R.L.R . 421.

201