By Edward Benson (auth.)

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Extra info for A Guide to Redundancy Law

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In Superest Upholstery Ltd v. Rowberry & others (unreported Court of Appeal 1980/66), a number of employees signed a list indicating they were prepared to work at new premises. They resigned after two weeks and claimed constructive dismissal. As they had agreed to the move, their claim failed. An employee does not have to resign immediately. In Marriott v. Oxford & District Co-operative Society Ltd ([ 1970] ITR 377), Mr Marriott stayed on for about four weeks before resigning. But if he leaves it too long, his right to resign and be constructively dismissed may be lost, because he may be taken to have agreed to the new terms.

In a sense, this amounted to saying the contract was frustrated, as it echoed the definition of frustration given by the House of Lords in Davis Contractors Ltd. v. Fareham UDC (above, p. 40). Despite Hare v. Murphy Bros Ltd, tribunals still sometimes doubt whether imprisonment can ever frustrate a contract. In Norris v. Southampton City Council ([1982] IRLR 141), the EAT held it could not, saying that the majority of the Court of Appeal in Hare v. Dismissal 43 Murphy Bros Ltd, had concluded that imprisonment was a 'repudiatory breach of contract' entitling the employers to dismiss summarily.

5(1) provides that a transfer of a business does not operate to terminate an employment contract, and that any such contracts which would, but for the Regulations, have been terminated by the transfer, will continue after the transfer as if the employees had been employed by the transferee all along. It will still be open both to the transferor and the transferee to dismiss- the only effect of Reg. 5(1) is that the transfer itself will not do so. Moreover, an employee may still claim constructive dismissal.

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