Crossley V Faithful and Gould Holdings LTD

Crossley v Faithful & Gould Holdings Ltd, [2004] I.C.R.
1615 (2004)
For educational use only

*1614 Crossley v Faithful & Gould Holdings Ltd
Positive/Neutral Judicial Consideration
Court
Court of Appeal (Civil Division)
Judgment Date
16 March 2004
Report Citation
[2004] EWCA Civ 293
[2004] I.C.R. 1615
Court of Appeal
Sir Andrew Morritt V-C , Dyson and Thomas LJJ
2004 Feb 24; March 16
Employment—Contract of employment—Implied term—Employee in ill—health resigning—

Benefit under employer's disability insurance scheme discretionary once employment terminated
—Whether implied term requiring employer to take reasonable care for employee's economic well
—being
The claimant, a long-standing senior employee and director of the defendant company, was
advised to apply for early retirement on medical grounds. Under the terms of his contract of
employment, if he was absent from work due to illness, he was entitled to be paid his full salary
for up to six months, and thereafter such remuneration as the defendant might in its discretion
allow; and, as a member of the defendant's long-term disability insurance scheme, in the event
that he was "totally unable by reason of sickness ... to follow his occupation", he was entitled
to benefits, as of right so long as he remained in the defendant's employment, and thereafter at
the discretion of the insurers. Following discussions about the arrangements for his retirement,
the claimant wrote a letter confirming that "because of continued ill-health I shall be retiring ...
both as an employee and as a director of [the defendant]". In the exercise of their discretion, the
insurers paid benefit to the claimant for a year following his retirement, but not thereafter. The
claimant brought an action for damages for breach of contract, alleging, inter alia, that, in failing
to warn him of the effect which resigning from his employment would have on his entitlement
to benefits under the insurance scheme, the defendant had acted in breach of an implied term
of the contract of employment requiring it to take reasonable care for the claimant's economic
© 2021 Thomson Reuters. 1

Crossley v Faithful & Gould Holdings Ltd, [2004] I.C.R. 1615 (2004)
well-being. The judge dismissed the claim, holding that the claimant had made his decision to
retire unprompted by the defendant and that there was no implied obligation on the defendant
as the claimant's employer to exercise reasonable care for the latter's economic well-being.
On the claimant's appeal-
Held, dismissing the appeal, that, there was no standard obligation implied by law as a term of all
contracts of employment which required an employer to take reasonable care for the economic
well-being of his employee; that there was no reason of public policy to impose on employers
a general duty to safeguard an employee's economic well-being, particularly where there might
be a conflict of interest between employer and employee and where to do so would impose an
unfair and unreasonable burden on employers; that a court should, therefore, be astute only to
imply a precise term in carefully circumscribed circumstances; that the defendant employer had
not assumed any responsibility for giving financial advice to the claimant which could give rise
to any contractual duty to take care in giving that advice; and that the judge had been entitled to
conclude, on the facts, that the claimant, as a senior employee of long-standing, could reasonably
have been expected to be aware of the relevant provisions of the scheme, even though they had
not been brought to his attention (post, paras 33, 42-45, 49-52, 55, 56).
Reid v Rush & Tompkins Group plc [1990] ICR 61, CA and dicta of Lord Woolf in Spring v
Guardian Assurance plc [1994] ICR 596, 647, HL(E) considered.
Scally v Southern Health and Social Services Board [1991] ICR 771, HL(NI) distinguished.
Decision of Judge Peter Langan QC sitting as a judge of the Queen's Bench Division affirmed.
*1615
The following cases are referred to in the judgment of Dyson LJ:
Hagen v ICI Chemicals & Polymers Ltd [2002] IRLR 31

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 3 WLR 101; [1963]
2 All ER 575, HL(E)
Johnson v Unisys Ltd [2001] UKHL 13; [2001] ICR 480; [2003] 1 AC 518; [2001] 2 WLR
1076; [2001] 2 All ER 801, HL(E)
Lennon v Comr of Police of the Metropolis [2004] EWCA Civ 130; [2004] ICR 1114; [2004]
1 WLR 2594; [2004] 2 All ER 266, CA
Liverpool City Council v Irwin [1977] AC 239; [1976] 2 WLR 562; [1976] 2 All ER 39, HL(E)

Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606; [1998] AC 20;
[1997] 3 WLR 95; [1997] 3 All ER 1, HL(E)
Outram v Academy Plastics Ltd [2001] ICR 367, CA
Reid v Rush & Tompkins Group plc [1990] ICR 61; [1990] 1 WLR 212; [1989] 3 All ER 228, CA
Scally v Southern Health and Social Services Board [1991] ICR 771; [1992] 1 AC 294; [1991]
3 WLR 778; [1991] 4 All ER 563, HL(NI)
Spring v Guardian Assurance plc [1994] ICR 596; [1995] 2 AC 296; [1994] 3 WLR 354;
[1994] 3 All ER 129, HL(E)
University of Nottingham v Eyett [1999] ICR 721; [1999] 2 All ER 437
The following additional cases were cited in argument:
Aspden v Webbs Poultry & Meat Group (Holdings) Ltd [1996] IRLR 521
Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642;
[2003] 1 WLR 577; [2003] 1 All ER (Comm) 140, CA
Briscoe v Lubrizol Ltd [2002] EWCA Civ 508; [2002] IRLR 607, CA
Brompton v AOC International Ltd [1997] IRLR 639, CA
The following additional cases, although not cited, were referred to in the skeleton arguments:
Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602; [1995] 4 All ER 907, CA
Designers Guild Ltd v Russell Williams (Textiles) Ltd (trading as Washington DC) [2000] 1
WLR 2416; [2001] 1 All ER 700, HL(E)
El Ajou v Dollar Land Holdings plc [1994] 2 All ER 685, CA
Forsikringsaktieselskapet Vesta v Butcher [1989] 1 AC 852; [1989] 2 WLR 290; [1989] 1 All
ER 402, HL(E)
APPEAL from Judge Peter Langan QC sitting as a judge of the Queen's Bench Division in Leeds
By a claim form and particulars of claim dated 22 May 2001, the claimant, Michael Victor
Crossley, sought damages against the defendant, Faithful & Gould Holdings Ltd, for breach of
an implied term of his contract of employment to exercise reasonable care for his economic well-
being and in particular to take reasonable care to conduct itself so as not to prejudice the claimant's
rights under the defendant's long term disability insurance scheme. By an order dated 30 June 2003
the judge dismissed the claim for damages but gave the claimant limited permission to appeal.
By an appellant's notice dated 14 July 2003 the claimant appealed on the grounds, inter alia, that
the judge had erred in law in holding that (1) the defendant as the claimant's employer was not
under a duty implied by law into the employment contract to exercise reasonable care for the
claimant's economic well-being and in particular to take reasonable care to conduct itself so as
not to prejudice the claimant's rights under the defendant's long *1616 term disability insurance
scheme; and (2) the claimant could not bring himself within the category of case identified by
the House of Lords in Scally v Southern Health and Social Services Board [1991] ICR 771 , 781
and that accordingly there was no duty on the defendant to warn the claimant that taking early

retirement from his employment would have a seriously prejudicial impact on his rights under the
scheme.
The facts are stated in the judgment of Dyson LJ.
Representation
Antony White QC for the claimant.

John Cavanagh QC and Daniel Oudkerk for the defendant.
Cur. adv. vult.

16 March. The following judgments were handed down.
DYSON LJ
1. This is an appeal brought with the permission of the trial judge against the judgment of Judge
Peter Langan QC delivered on 30 June 2003 dismissing the claimant's claim for damages against
the defendant, his former employer, for breach of implied terms of his contract of employment.
The judge gave permission to appeal because it was recognised on both sides that the appeal raises
"difficult, and highly debatable, questions in a developing area of employment law".
2. The claimant was a long-standing senior employee and director of the defendant company.
Under the terms of his contract of employment, if he was absent from work due to illness, he was
entitled to be paid his full salary for up to six months' absence in any period of six months, and
thereafter such remuneration as the board of the defendant might in its discretion allow. By clause
13 of his contract of employment, the claimant became a member of the defendant's group long
term disability insurance scheme. The insurer was UNUM Ltd. It is unnecessary to set out the
details of the scheme. Suffice it to say that so long as the claimant remained in the defendant's
employment, he was entitled as of right to benefits in the event that he was "totally unable by
reason of sickness ... to follow his occupation"; and after the termination of his employment with
the defendant, benefits were payable at the discretion of the insurer.
3. At all material times, Richard Hall was the managing director of the defendant. He had, among
other duties, overall responsibility for all types of insurance taken out by the defendant. He would
not, however, ordinarily deal with an individual claim. David Ridley became acting chairman of
the defendant in February 1996 and chairman one year later.
4. Thomas Suffell was an insurance broker and director of Castlegate Insurance Brokers Ltd
("Castlegate"). Much of the defendant's insurance was arranged through Castlegate, including
permanent health insurance under the scheme. If a claim was made under the scheme, Mr Suffell
would act as intermediary between the defendant and the insurer. As well as dealing with the
defendant, Mr Suffell was also adviser to a number of the directors on their individual pension

arrangements. These directors included the claimant: he and Mr Suffell had known each other
since about 1985.
*1617
5. In February 1996, the shares in the defendant company were sold to W S Atkins Ltd ("Atkins").
On completion of the sale, the defendant became a wholly-owned subsidiary of Atkins. As
consideration for his shares, the claimant received £777,806 in cash and 444,298 new shares
in Atkins. In February and March 1997, the claimant attended meetings with representatives of
KPMG to discuss means by which the shares could be sold without incurring a liability for capital
gains tax.
6. In late 1996, he had suffered a nervous breakdown and was advised by Dr Beaini, his consultant
psychiatrist, to consider taking early retirement on health grounds. He went on sick leave on 6
December 1996 and never returned to work. By late February 1997, the defendant realised that
the claimant might be going to make a claim under the scheme. It was also during this period
that Mr Suffell was made aware of the possibility that the claimant would make a claim under the
scheme. In the week commencing 17 March 1997, the claimant telephoned Mr Suffell and asked
what needed to be done in order to make a claim. Mr Suffell replied that the defendant would have
to contact the insurer.
7. On 17 April 1997, the claimant saw Dr Beaini again. The doctor considered that there was no
prospect of the claimant's recovering from his moderate to severe depression in the foreseeable
future and advised him to pursue an application for early retirement on mental health grounds.
This advice was accepted by the claimant.
8. On 21 April 1997, he spoke by telephone to Mr Hall, the defendant's managing director.

There was a dispute at the trial between the claimant and Mr Hall as to what was said during this
conversation. The claimant's account was that he asked Mr Hall whether he could make a claim
under the scheme and Mr Hall said that all he needed to do was to provide a letter stating that he
wanted to retire on health grounds. Mr Hall denied that he would have told the claimant that he
would not receive benefits under the scheme unless he retired. The judge concluded that Mr Hall
had not made a request for a letter of retirement from the claimant for the purpose of obtaining
benefits under the scheme. He found that, whilst the scheme might have been mentioned in the
conversation, the discussion was primarily focused on the claimant's forthcoming departure from
his post with the defendant.
9. On 22 April 1997, the claimant wrote to Mr Hall:
"Further to our recent conversation I enclose a copy of my consultant's letter regarding my

state of health. I had hoped that the lengthy break on sick leave would have enabled me to
recover but I must now accept that I could not sustain a return to the pressures of work.
After 21 years with Faithful & Gould it is not an easy decision but I now wish to pursue
an application for early retirement upon health grounds and hope that you will be able to put
the necessary wheels in motion."

10. On 29 April 1997, the claimant completed a form seeking long-term disability benefit under
the scheme. The application for benefit had to be made by the defendant and, at Mr Hall's request,
the claimant completed much of the form. This was signed on behalf of the defendant on 2 May
1997. On each form there was a question "Has employment been terminated?" in answer to which
the claimant ticked the box marked "No".
*1618
11. During May and June, there were discussions between the claimant and Mr Ridley about the
arrangements for the claimant's retirement. At first, Mr Ridley said that the company would pay the
claimant's salary until 6 June 1997 (six months after he had stopped work). The claimant looked
at his service agreement and saw that the company had a discretion to continue paying his salary
beyond that date. He pointed this out to Mr Ridley, who agreed to pay a further three months'
salary, but required a letter from the claimant confirming that he would be retiring on 6 September
1997. The claimant, therefore, wrote to Mr Ridley on 4 June:
"Following our recent conversation I confirm that I shall be retiring from Faithful & Gould
upon 6 September 1997 upon health grounds. May I thank you for the generous offer to pay
my salary until that date (subject to insurance payments)."
12. By a letter dated 28 July 1997, Mr Hall wrote to the claimant:
"As we discussed, I enclose some words which should satisfy the requirements of Atkins'
personnel department but which should obviously be written in your own style.
"Further to our recent conversation I confirm that because of continued ill-health I shall be
retiring with effect from 6 June 1997 both as an employee and as a director of Faithful &
Gould Ltd. I also confirm that I am happy to waive any notice period to which I am entitled.
(Final paragraph written by you.) It would be best if you could date this letter prior to 6 June
1997."
13. Accordingly, shortly after 28 July, the claimant wrote a further retirement letter. This was
backdated to 28 May and included a paragraph which in all material respects corresponded
precisely with Mr Hall's draft.
14. The effect of the termination of the claimant's employment was that he ceased to be entitled to
benefit under the scheme as of right and became instead entitled to receive discretionary benefits.
In the exercise of its discretion, the insurer paid benefit until June 1998, but not thereafter. The

defendant would have been content for the claimant to remain on its books as an employee, albeit
on indefinite sick leave, for the purposes of receiving benefit under the scheme.
15. The judge found that Mr Hall, and, therefore, the defendant, knew that, if the claimant
resigned from his employment, his right to benefits under the scheme would cease, and he would
be dependent for benefits on the exercise by the scheme's insurer of its discretion in his favour.
The nature of the claimant's case
16. In the court below, the claimant's case was presented on three alternative bases. Each was
rejected by the judge. The claimant does not challenge the judge's decision on the first basis of
claim, which was founded on the disputed telephone conversation between the claimant and Mr
Hall of 21 April 1997. This was that Mr Hall had advised him that, in order to obtain benefits under
the scheme, he needed to retire. But it is submitted by Mr White on behalf of the claimant that the
judge was wrong to reject both of the other bases of claim. These were that the defendant acted in
breach of an implied term of the contract of employment requiring it to take *1619 reasonable care
for the claimant's economic well-being (i) by asking him to submit a resignation letter knowing that
he was applying for benefits under the scheme and that resignation would seriously prejudice his
entitlement to such benefits; alternatively (ii) by failing to warn him of the effect which resigning
from his employment would have on his entitlement to benefits under the scheme.
The judgment
17. In a careful judgment, Judge Peter Langan QC reviewed what he described as "the five key
authorities". These are Scally v Southern Health and Social Services Board [1991] ICR 771 and
Spring v Guardian Assurance plc [1994] ICR 596 , decisions of the House of Lords; University
of Nottingham v Eyett [1999] ICR 721 , Hart J; Outram v Academy Plastics Ltd [2000] ICR 499
, Court of Appeal, and Hagen v ICI Chemicals & Polymers Ltd [2002] IRLR 31 , Elias J. The
judge concluded that the law has not reached a stage at which it can be said that there is implied
in the contractual relationship of employer and employee what has been called a "portmanteau
obligation" on the former to exercise reasonable care for the latter's economic well-being. He went
on to say:
"In my judgment, what the courts have done in relation to duties to be imposed (additionally
to the long established duty of trust and confidence) on employers in respect of matters other
than health and safety is to proceed slowly and on a case-by-case basis. What has been done
is to imply a term where this is deemed necessary in respect of the particular contract (as was
done in Scally and by some of their Lordships in Spring ) rather than to apply some overriding
principle of the kind suggested by Mr White."

18. He then considered the second basis of the claim and examined the circumstances in which
the letter of 28 July 1997 came to be written. He said:
"I accept, as submitted by Mr White, that the following matters were within the knowledge of
Mr Hall when he wrote the letter of 28 July and that they must therefore be regarded as within
the defendant's knowledge. The claimant's medical condition and the likelihood that he would
never be able to return to his previous occupation. His salary would soon cease to be payable.
He had made an application under the scheme. It was only if that application was successful
that he would obtain some partial replacement of his income from work. The claimant could
only pursue his application through the defendant and was relying on the defendant to ensure
that his application progressed. It would be perfectly possible for the claimant to remain on
the defendant's books as an employee, albeit indefinitely absent from work, for the purpose of
receiving benefits under the scheme. If the claimant resigned from his employment, his right
to benefits would cease and he would depend for benefits on the exercise by [the insurer] of
its discretion in his favour."
19. He continued:
"In my judgment, these matters are insufficient to impose on the defendant, when writing
the letter of 28 July 1997, an obligation to alert *1620 the claimant to the effect which
resignation would have on his pension rights. I set out my reasons below. The context in which
the letter was written was one in which the claimant had already decided to retire and had, in
consequence of that decision, applied for benefit under the scheme. The claimant had made
his decision to retire in April, on his own initiative and on the basis of medical advice, and his
decision was, on my findings of fact, unprompted by the defendant. In May the application for
benefit had been submitted. Apart from fixing the date of retirement, the die had been cast. The
letter of 28 July was written with a view to assisting the claimant to retire in a manner which
would, vis-à-vis his salary or a leaving payment in lieu, be the most tax-efficient from his
point of view. What the claimant is seeking is to import into that limited context an obligation
on the part of the defendant to have regard to the claimant's overall financial situation. While
there might possibly be some ground for regarding the defendant as having assumed some
such responsibility if it were dealing with a junior and relatively low paid employee, there
could be no such justification in the case of someone in the claimant's situation. I have regard
to his experience, status, wealth (which he acknowledged in evidence) and access for advice to
Castlegate and Mr Suffell. I appreciate that the duty relied upon by Mr White is of a negative
kind, namely, not to act in a way which will imperil the claimant's rights. But what is in
fact required of the defendant by way of performance of the duty is, or comes perilously
close to, what the courts refused to countenance in Eyett , Outram and Hagen , namely, an
affirmative obligation on an employer to give advice as to pension rights. Finally, to return to
Scally , the foundation of the decision was that the doctors' rights could be made efficacious
only if the board alerted them to those rights. Hence the term as to conveying information
was implied as a matter of necessity. In order to make the claimant's rights efficacious, it

is not necessary to imply a term that the defendant will not suggest any step which might
be potentially destructive of those rights. As I have already indicated, the claimant was in a
position in which he could reasonably be expected to decide upon his own course of action.
"These points, taken together, have convinced me that, when Mr Hall wrote the letter of 28
July 1997, there was no obligation on him to have regard to the effect which the writing of
a formal letter of resignation might have on the claimant's position under the scheme. The
same reasoning would apply to Mr Ridley's request, which was similarly relied upon by Mr
White, for the letter of 4 June. Accordingly, the second basis of claim fails."
20. As regards the third basis of claim, failure to warn, the judge said that the circumstances of
Scally'scase [1991] ICR 771 were very special: he described it as a "bridgehead from which there
has been no advance". Having recited the criteria enunciated by Lord Bridge of Harwich, at pp
771 and 781, to which I shall shortly refer, he said:
"As I have already indicated, the claimant was a person of status and long experience within
the defendant. He, as much as any other director, could be expected to familiarise himself
with the terms of the scheme. It is true that the scheme is not phrased in language the import of
which is immediately plain to the lay reader and that there was (or there is no *1621 evidence
that there was) no explanatory booklet of the kind available to Mr Eyett. This difficulty is,
however, far outweighed by the fact that the claimant had ready access to Mr Suffell, who
had the dual roles (between which there was no conflict) of advising both the claimant and
the defendant on pension matters. In these circumstances it is unnecessary , which is the test
propounded in Scally , to place an obligation to advise or warn on the defendant. Mr White's
additional factors, with respect, do not advance the case. As regards the claimant's illness,
this affected his ability to work, but did not on the evidence prevent him from attending
meetings with KPMG about CGT or consulting Mr Suffell from time to time. As regards the
claimant's reliance on the defendant to pursue the claim and the importance of the matter to
him, I repeat that he had Mr Suffell to advise him if he wished to avail of such advice. Finally,
the defendant's anxiety for the claimant's welfare does seem (if Mr White will forgive my
saying so) to be something of a jury point."
The authorities
21. In Scally'scase [1991] ICR 771 the plaintiffs were doctors working in the public service and
employed by the defendant board. Under their contracts of employment they were required to
belong to a statutory superannuation scheme and were entitled to its benefits. It was necessary
to accumulate 40 years' service in order to qualify for the maximum pension. Employees had the
right to purchase "added years" of entitlement in order to make up a full 40 years' contributions.

This right was, however, exercisable only for a limited period. The House of Lords decided that
there was to be implied into the contracts of employment an obligation on the board to take
reasonable steps to bring to the attention of the plaintiffs their right to purchase "added years". Lord
Bridge, with whose speech the other law lords agreed, implied the term as a necessary incident of
the employer/employee contractual relationship, rather than as being necessary to give business
efficacy to the contract. The category of contractual relationship in which the implication would
arise, however, had to be defined with precision. Lord Bridge defined it, at p 781, as:
"the relationship of employer and employee where the following circumstances obtain: (1) the
terms of the contract of employment have not been negotiated with the individual employee
but result from negotiation with a representative body or are otherwise incorporated by
reference; (2) a particular term of the contract makes available to the employee a valuable
right contingent upon action being taken by him to avail himself of its benefit; (3) the
employee cannot, in all the circumstances, reasonably be expected to be aware of the term
unless it is brought to his attention."
22. He considered that it was not merely reasonable, but necessary, in the circumstances
postulated, to imply an obligation on the employer to take reasonable steps to bring the term of the
contract in question to the employee's attention, so that he was in a position to enjoy its benefit.
23. In Spring v Guardian Assurance plc [1994] ICR 596 the plaintiff claimed damages in
negligence against his former employer for supplying an unfavourable reference to a third party.
By a majority of four to one, he *1622 was successful in the House of Lords. The majority based
their decision on an application of the decision in Hedley Byrne & Co Ltd v Heller & Partners Ltd
[1964] AC 465 . Three of the majority were also prepared to base their decision on breach of an
implied term of the contract: see per Lord Goff of Chieveley at p 613d-f, Lord Slynn of Hadley
at p 633e-g, and Lord Woolf at pp 646-647. The fullest discussion appears in the speech of Lord
Woolf. Having referred to the speech of Lord Bridge in Scally's case, Lord Woolf said, at p 647:
"As I understand Scally , it recognises that, just as in the earlier authorities, the courts were
prepared to imply by necessary implication a term imposing a duty on an employer to exercise
due care for the physical wellbeing of his employees, so in the appropriate circumstances
would the court imply a like duty as to his economic wellbeing, the duty as to his economic
wellbeing giving rise to an action for damages if it is breached."
24. Lord Woolf went on to specify circumstances which would enable a term to be implied. He
said, at p 647:
"The circumstances are: (i) The existence of the contract of employment or services. (ii) The
fact that the contract relates to an engagement of a class where it is the normal practice to

require a reference from a previous employer before employment is offered. (iii) The fact
that the employee cannot be expected to enter into that class of employment except on the
basis that his employer will, on the request of another prospective employer made not later
than a reasonable time after the termination of a former employment, provide a full and frank
reference as to the employee.
"This being the nature of the engagement, it is necessary to imply a term into the contract that
the employer would, during the continuance of the engagement or within a reasonable time
thereafter, provide a reference at the request of a prospective employer which was based on
facts revealed after making those reasonably careful inquiries which, in the circumstances, a
reasonable employer would make."
25. In University of Nottingham v Eyett [1999] ICR 721 , the complainant was employed by the
university and was a member of its pension scheme. He inquired as to what his pension entitlement
would be if he took early retirement on 31 July 1994. The university provided an entirely accurate
quotation, but failed to inform him that his pension would be increased if he retired on the earliest
date after 31 July. Unaware of the advantage of deferring his retirement, the complainant retired
on 31 July 1994. The Pensions Ombudsman held that the university had been in breach of its
"general duty of good faith" in failing to provide the complainant with sufficient information to
enable him to make an informed choice of retirement age, although it had supplied him with an
explanatory booklet from which he could have discovered the financial advantage of deferring
his retirement. Hart J allowed the university's appeal. It was conceded on behalf of the Pensions
Ombudsman that Scally'scase [1991] ICR 771 provided no support for Mr Eyett, because he knew
of the existence of his early retirement rights. Counsel for the ombudsman sought to support his
decision on the basis that, by failing to give appropriate advice, the university had been in breach
of the duty of trust and confidence implicit in *1623 the contractual relationship of employer and
employee as elaborated in Mahmud v Bank of Credit and Commerce International SA [1997] ICR
606 . Hart J observed that this duty has consistently been applied negatively, to prohibit conduct
damaging to the relationship, and not positively to enjoin conduct which would avoid damaging
consequences. Nevertheless, he was unwilling to exclude the possibility that the duty may, in
appropriate circumstances, have a positive as opposed to a merely negative content, although he
recognised that so to hold would involve an extension of the existing law: see [1999] ICR 721,
727h-728b. He then said, at p 728:
"In the final analysis the question for determination comes down to this: does the implied
term include a positive obligation on the employer to warn an employee who is proposing
to exercise important rights in connection with his contract of employment that the way in
which he is proposing to exercise them may not be financially the most advantageous way
in the particular circumstances? Expressed in those terms, it can be seen that the recognition
of such a duty has potentially far reaching consequences for the employment relationship. A
degree of caution is therefore required."

26. He pointed out that in the specific area of giving advice to employees in connection with their
pension rights, the furthest the courts have gone in recognising such a default obligation appears
to have been in Scally's case, a decision which provided no support for the complainant's case. The
authorities (including those on the duties of pension fund trustees) neither compelled nor justified
the judge in holding that the university was in breach of contract in failing to alert the complainant
to the possibility that he was making a financial mistake. The appeal was allowed.
27. In Outram v Academy Plastics Ltd [2001] ICR 367 , the deceased was employed by the
defendant company and was a member of the company pension scheme. He left his employment
and ceased to be a member of the scheme. He was later re-employed by the defendant, but did not
rejoin the scheme. After a further eight months, he resigned on account of ill-health, and shortly
thereafter he died. His widow and personal representative brought an action against the defendant
company alleging that it should have advised the deceased to rejoin the scheme when he was re-
employed. The claim was brought in negligence, not in contract. The Court of Appeal held that
the judge at first instance had rightly struck out the claim as disclosing no cause of action.
28. Tuckey LJ pointed out that in Scally's case [1991] ICR 771 the claim had been framed in
tort as well as in contract. Lord Bridge, at p 777e, had expressly stated that, if a duty to make
employees aware of their pension rights "was not inherent in the contractual relationship, [he did]
not see how it could possibly be derived from the tort of negligence". Tuckey LJ's conclusion was
expressed at [2001] ICR 367, 373, para 21:
"The simple answer to this case is that, as the claimant does not say the duty to give advice is
contractual arising expressly or impliedly out of the deceased's contract of employment, the
claim is bound to fail following Scally v Southern Health and Social Services Board [1991]
ICR 771 . Taking the matter at its highest from the claimant's point of view, if there is a duty of
care in tort it is only co-extensive with the contractual duty *1624 and, since no contractual
duty is, or I think could be, relied on in this case, there is no duty of care in tort either."
29. Chadwick LJ seems to have thought, at p 375, para 32, that it might have been arguable that
the claim could have been put in contract, since the contractual duties owed by an employer, or
former employer, in relation to its employees were "in a state of development, particularly in the
field of economic loss suffered by an employee as a result of action or omission by the employer
ancillary to the performance of the contract of employment itself". But since counsel rejected the
suggestion that the claim could be put on a contractual basis, the court had no choice other than to
dismiss the appeal on the grounds that the claim in the tort of negligence was bound to fail.
30. In Hagen v ICI Chemicals & Polymers Ltd [2002] IRLR 31 the claimants had been employed
by ICI in its central engineering resource section. ICI transferred this section as a going concern

to RES. The claimants' case was that they were persuaded to agree to the move by representations
made to them by ICI and RES. They put their case against ICI in negligence and breach of contract.
The implied terms for which they contended included (a) a duty not, without reasonable and proper
cause, to act in such a way as would be likely to destroy or seriously damage the relationship of
trust and confidence existing between it and its employees; and (b) a duty at all reasonable times to
take all reasonable steps to ensure that the plaintiffs were made aware of the true position in regard
to their pension rights and to all other benefits and entitlements under their contract of employment.
31. In relation to (a), Elias J said, at p 39:
"55. Ms Booth accepts (subject to an argument that I address below) that it is in principle
possible for even negligent conduct to constitute a breach of this implied term, but she submits
that it would have to be a rare case, coming close to recklessness, before that term could
be engaged. I accept that submission. Lord Steyn emphasised in [ Mahmud ] that in order
to constitute a breach of this term, the conduct had at least seriously to undermine trust and
confidence. It seems to me that the negligent conduct would have to demonstrate a real and
unacceptable disregard for the interests of the employee before this term could successfully
be invoked. It would have to be the kind of conduct that would justify the employee treating
it as a repudiatory breach ...
"56. Plainly individual acts of negligence will not in the ordinary way constitute a breach
of this duty. They will not undermine the confidence necessary to sustain the employment
relationship, and I do not think that anyone would suggest that they should. Indeed, it would be
highly detrimental to employees if any act of negligence could be equated with a repudiatory
breach of the duty of trust and confidence so as to justify lawful termination of the contract."
32. In relation to (b), Elias J referred to the speech of Lord Bridge in Scally's case [1991] ICR
771 , 781 and said, at p 41:
"67. It is to be noted that this term is very carefully framed and depends upon, in particular,
the fact that the employee could not *1625 reasonably be expected to be aware of this term
at all without it being brought to his attention.
"68. In my view there is no justification for applying Scally here so as to impose a general duty
to make employees aware of their pension rights (or indeed the other terms and conditions
of their employment). Scally cannot be read as a general authority requiring an employer
to give information about pension terms. There are in my view three factors which make
the Scally principle inapplicable to the facts of this case. First, it is not and could not be
alleged that the employees have not been informed of their pension rights with ICI, far less
can it be said that they could only reasonably be expected to know about them if informed
by ICI. Second, the complaint is that the employees have not been fully informed about the
precise nature of the benefits accorded by RES's pension scheme; it is difficult to imagine

that there could be a contractual duty requiring an employer to give information about the
pension scheme of another employer, absent at least some very exceptional circumstances.
Third, the pension benefits in this case did not in any event arise under the contract but rather
were conferred under a separate trust deed. In my judgment, for those reasons in particular,
it cannot conceivably be said that there is a duty to be derived from the principles in Scally
which obliges ICI to provide that information."
Implied term to take care for economic well-being of employee
33. In my view, the judge was right to reject the "portmanteau obligation" contended for by Mr
White, i e an implied term of any contract of employment that the employer will take reasonable
care for the economic well-being of his employee. This would be a standardised term to be implied
by law, that is to say a term which, in the absence of any contrary intention, is an incident of all
contracts of employment. It is not a term implied to give business efficacy to the particular contract
in question which is dependent on an intention imputed to the parties from the express terms of
the contract and the surrounding circumstances. As is said in Anson's Law of Contract , 28th ed
(2002), p 149:
"In these cases concerning a common relationship, for example sale, carriage, landlord and
tenant, or employment, the parties may have left a lot unsaid and the process of implication is
different. It involves the court determining, in the light of general considerations of policy, the
standard incidents of the particular type of relationship rather than constructing a hypothetical
bargain. Although it has sometimes been said that the criterion for this form of implication is
also 'necessity' rather than 'reasonableness', it does appear that a broader approach is taken.
The courts will consider how the proposed implied term will sit with existing law, will affect
the parties to the relationship, and wider issues of fairness. While the parties can exclude or
modify the standard incidents of the relationship by express words, unless they do so they will
form part of the obligation as a legal incident of the particular kind of contractual relationship.
Such standardised terms, implied by law, have been said to 'operate as default rules'. In these
cases it has been said [per Lord Denning MR in Shell UK Ltd v Lostock Garages Ltd [1976]
1 WLR 1187 , 1200] that the problem of implication is to be solved by asking: *1626 [H]as
the law already defined the obligation or the extent of it? If so, let it be followed. If not, look
to see what would be reasonable in the general run of such cases ... and then say what the
obligation shall be."
34. It is submitted by Mr Cavanagh that it is a prerequisite of such an implied term that it is

necessary. There is some support for this submission in the authorities. But the word "necessary"
is somewhat protean. In Liverpool City Council v Irwin [1977] AC 239 the House of Lords held
that there was a term to be implied in a council letting, as a legal incident of the relationship,

that the landlord would keep the means of access in reasonable repair. Lord Wilberforce said, at p
254f, that such an obligation should be read into the contract "as the nature of the contract itself
implicitly requires, no more, no less: a test, in other words, of necessity". Means of access is an
essential of a tenancy without which life in the premises, as a tenant, is not possible. It is easy
enough to see how in that context the implied term was necessary. As Lord Wilberforce put it,
at p 254g: "The subject matter of the lease (high rise blocks) and the relationship created by the
tenancy demand, of their nature, some contractual obligation on the landlord."
35. In Scally'scase [1991] ICR 771 , the implied term was said to be necessary because, unless the
employer informed the employee of the terms of the scheme, the employee would have no means
of knowing what they were and would therefore not be able to avail himself of one of the benefits
of his contract of employment. But I confess that it is less clear to me in what sense it is necessary
to imply into a contract of employment the implied term that three of their Lordships were willing
to find in Spring's case [1994] ICR 596 . More fundamentally, it is difficult to see in what sense it
is necessary to imply into a contract of employment the term that the employer will take reasonable
care for the physical and mental health and safety of his employees. It obviously makes sense to
imply such a term into a contract of employment on wider policy grounds. But that is different
from saying that the nature of the employer/employee relationship implicitly requires such a term.
36. It seems to me that, rather than focus on the elusive concept of necessity, it is better to recognise
that, to some extent at least, the existence and scope of standardised implied terms raise questions
of reasonableness, fairness and the balancing of competing policy considerations: see Elisabeth
Peden, "Policy Concerns behind Implication of Terms in Law" (2001) 117 LQR 459, 467-475.
Such considerations are, I believe, reflected in the recent significant developments in the field of
the employer/employee relationship. In Spring's case , Lord Slynn of Hadley commented, at p 628:
"it is relevant to consider the changes which have taken place in the employer-employee
relationship, with far greater duties imposed on the employer than in the past, whether by
statute or by judicial decision, to care for the physical, financial and even psychological
welfare of the employee."
37. In Johnson v Unisys Ltd [2001] ICR 480 , 495, para 35, Lord Hoffmann observed:
"But over the last 30 years or so, the nature of the contract of employment has been
transformed. It has been recognised that a person's employment is usually one of the most
important things in his or her life. *1627 It gives not only a livelihood but an occupation, an
identity and a sense of self-esteem. The law has changed to recognise this social reality. Most
of the changes have been made by Parliament ... And the common law has adapted itself to
the new attitudes, proceeding sometimes by analogy with statutory rights."

38. In recent years, the common law has moved to impose certain duties on employers beyond the
duty to take reasonable care to protect the physical well-being of their employees. One example of
such an extension is the implied term that an employer will not engage in conduct which is likely
to undermine the trust and confidence required if the employment relationship is to continue in the
manner the employment contract implicitly envisages: see per Lord Nicholls in Mahmud v Bank
of Credit and Commerce International SA [1997] ICR 606 , 610-611. The evolution of such an
implied term was said by Lord Steyn, at p 622, to be a comparatively recent development.
39. Other examples of the evolutionary process at work are to be found in Scally's case [1991] ICR
771 and Spring's case [1994] ICR 596 . It is important to see how the House of Lords approached
the question in those two cases. In Scally's case, Lord Bridge could have formulated the implied
obligation in wide terms. He could, for example, have said that there was an implied term of any
contract of employment that the employer should take reasonable steps to protect the economic
well-being of his employees. But it is quite clear that he was unwilling to express the obligation
in such wide terms. He could (more narrowly) have said that there was an implied term of any
contract of employment which provides for an occupational pension scheme that the employer
will take reasonable steps to protect the employee's rights under the scheme. But Lord Bridge was
not willing to express the implied term even in this more limited way. Instead, he restricted the
implied term by defining the category of relationship in which the implication would arise with
"sufficient precision" to meet the difficulty that had been identified by Carswell J at first instance
that to imply a term in all contracts of employment "must necessarily be too wide". He did not say
why it would be too wide. It seems to me that he must have had in mind policy considerations,
and some of the practical difficulties to which I shall shortly refer.
40. So too in Spring's case. Lord Woolf said, at p 647, that just as in the case of an implied duty to
exercise due care for the physical well-being of an employee, so "in the appropriate circumstances"
the court will imply a like duty in relation to the economic well-being of an employee. Far from
being willing to imply such a term in all contracts of employment, Lord Woolf was only prepared
to do so in "appropriate" circumstances. He then proceeded to specify the circumstances which
would enable a term to be implied in relation to the giving of references. He underlined, at p 646g,
the fact that the views that he had expressed were confined to the class of case with which he was
dealing, i e cases about references.
41. In both of these cases, the House of Lords defined the contract of which the implied term was
an incident in extremely narrow terms. It seems to me that there is some force in the observation
that by sub-dividing relationships into smaller and more numerous categories with terms that have
a less general application, the distinction between implication of terms *1628 in cases concerning
a common relationship (e g employment, sale of goods, contracts for work and materials, etc)
and implication in those concerning a particular contract becomes blurred: see Anson's Law of
Contract , pp 150-151.
42. In my view, there are two principal reasons why the implied term proposed by Mr White
should be rejected. First, it is not for this court to take a big leap to introduce a major extension

of the law in this area when only comparatively recently the House of Lords declined to do so. It
is clear that the approach adopted by Lord Bridge and Lord Woolf is wholly inconsistent with the
proposition that there is to be implied into a contract of employment a general duty on the part of
the employer that he will take reasonable care of the economic well-being of his employees. Thus,
having emphasised that his views were confined to the class of case with which he was dealing,
Lord Woolf went on to say that some of his statements could be applied to analogous situations,
but he did not intend to express any view as to what the position would be in those analogous
situations. So he was being cautious about extending the implied term even to analogous situations.
43. But secondly and more fundamentally, quite apart from authority, I would not accept the
implied term contended for by Mr White. Such an implied term would impose an unfair and
unreasonable burden on employers. It is one thing to say that, if an employer assumes the
responsibility for giving financial advice to his employee, he is under a duty to take reasonable
care in the giving of that advice. That is no more than an application of the Hedley Byrne principle
[1964] AC 465. An example of such a case in the context of a contract of employment is Lennon
v Comr of Police of the Metropolis [2004] ICR 1114 . It is quite a different matter to impose on an
employer the duty to give his employee financial advice in relation to benefits accruing from his
employment, or generally to safeguard the employee's economic well-being.
44. As Mr Cavanagh points out, the financial well-being of the employee may be in conflict
with that of the employer. Take the case of an employer who is considering whether or not to
make an employee redundant. In deciding whether to make a particular employee redundant or to
invite him to take voluntary redundancy, does the employer have a duty to consider the financial
consequences of redundancy to that employee? The all-embracing implied term for which Mr
White contends would suggest that he does. But that is surely unreasonable. The employer is not
required to have regard to the employee's financial circumstances when he takes lawful business
decisions which may affect the employee's economic welfare. There is no reason to suppose that
he will even be aware of the details of those circumstances. Nor is it the function of the employer
to act as his employee's financial adviser: that is simply not part of the bargain that is comprised
in the contract of employment. There are no obvious policy reasons to impose on an employer
the general duty to protect his employee's economic well-being. The employee can obtain his own
advice, whether from his union or otherwise. The policy considerations in relation to questions
of health and safety are wholly different. If an employer fails to provide a safe system of work,
it will usually not be possible or reasonable to expect the employee to take steps to make good
the shortcomings in the system.
*1629
45. Mr White submits that the fact that the implied duty for which he contends is no more than a
duty to take reasonable steps to protect his well-being provides the necessary control mechanism
to meet the difficulties to which I have referred. At first sight, it might be thought that this provides
an answer to the charge that the portmanteau obligation is exorbitant and imposes an unreasonable
duty on an employee. It is a beguiling response to the charge that the duty is unreasonable to say that
the duty only requires reasonable care to be taken. It is true that the law implies that an employer

should take reasonable steps to protect the physical well-being of his employees. Sometimes, this
can give rise to difficulty. But in most cases, it is obvious what an employer is required to do
and/or refrain from doing in order to discharge this duty. Likewise the implied duty recognised
in Mahmud's case [1997] ICR 606 . I find considerable difficulty in seeing what the content of
a general duty to take reasonable care for the economic well-being of an employee would be. It
is not, therefore, at all surprising that no court has held such a duty to exist. And that is why in
my view this is an area where the court should be astute only to imply a precise term in carefully
circumscribed circumstances. I would agree with the very cautious approach to this issue adopted
in Eyett'scase [1999] ICR 721 and Hagen's case [2001] IRLR 31 and the (obiter) rejection of an
implied term by Tuckey LJ in Outram's case [2001] ICR 367 .
46. I should not complete this discussion of the law without referring to Reid v Rush & Tompkins
Group plc [1990] ICR 61 , a decision that was not cited to the judge. This court (May, Neill and
Ralph Gibson LJJ) held that an employer owed no duty of care in contract or tort to advise his
employee to obtain personal accident insurance against special risks arising out of his posting
overseas. The court refused to extend the duty of care owed in tort to protect an employee's physical
safety and well-being by imposing a duty to protect the employee from economic loss. The court
also refused to find that there was an implied term of the contract that the employer would give
the employee all necessary advice in relation to insurance: see, in particular, per Ralph Gibson
LJ at p 77f-78e. This decision was cited, but not commented upon, in Scally's case [1991] ICR
771 . In my judgment, Mr Cavanagh was right not to place much reliance on this decision, since
it pre-dates Scally's case and it is now clear that there are certain restricted circumstances where
the court will imply a term whose effect is to impose on the employer a duty which affects the
employee's economic interests.
The facts of this case
47. Although I have rejected Mr White's "portmanteau obligation", the question remains whether
the second or third alternative bases of claim should have succeeded before the judge. I shall take
these in turn.
The second basis of claim: the letter of 28 July 1997
48. Mr White criticises the reasoning of the judge set out at para 67 of his judgment in a number of
respects. He submits that the judge wrongly treated the claimant's decision in April 1997 to seek
early retirement and apply for benefits under the scheme as a decision to terminate his employment.
Although he had received medical advice that he should cease work, this did not mean that he
had to terminate his employment. The *1630 reference to "retirement" in his letters was layman's
language for "stopping work". It did not indicate that he wished to terminate his employment rather
than remain as an employee on permanent sick leave. The judge was wrong to say that, when the
application for benefit was submitted, the die had been cast. He was also wrong to distinguish, at
the stage of considering whether any duty was owed, between the claimant as a senior employee

with "experience, status and ... access to advice" and a "junior and relatively low paid employee".
The provisions of the scheme were incorporated into the contracts of employment of all employees,
and the duty on the defendant to its employees in relation to the scheme would apply equally to
all its employees. Finally, the judge was wrong to say that, since the claimant was in a position
to decide upon his own course of action, it was not necessary to imply a term that the defendant
would not suggest any step which might be potentially destructive of his rights.
49. In my view, the judge was right to reject the second basis of claim. The starting point is the
finding that, during the telephone conversation of 21 April 1997, Mr Hall did not ask the claimant
to write a letter of retirement. The decision that the claimant should retire was made by him, and
not by the defendant. The discussions between the claimant and Mr Ridley in May and June were
conducted on the footing that the claimant had decided to terminate his contract. The judge heard
evidence from both the claimant and Mr Hall. In my view, he was fully justified in finding that
the claimant had decided to retire in April of his own initiative, and that the defendant did not
contribute to that decision. It is clear that by the use of the word "retire" the claimant meant, and
was understood to mean, "resignation from employment". That is why he was discussing with Mr
Ridley the period for which he would be paid his salary. It should not be overlooked that during the
spring/early summer of 1997 it had not been confirmed that the insurer would accept the claimant's
entitlement to benefit under the scheme. It follows that the judge was right to find that the letter of
28 July 1997 was written with a view, as he put it, "to assisting the claimant to retire in a manner
which would, vis-à-vis his salary or a leaving payment in lieu, be the most tax-efficient from his
point of view". The other aspects of the judge's reasoning which Mr White criticises were not
necessary to support his conclusion on this part of the case, and I do not therefore propose to
deal with those criticisms. It is important to emphasise that, on the judge's findings, in sending
the letter of 28 July, Mr Hall did not assume any responsibility in relation to the question whether
the claimant should terminate his contract of employment rather than remain as an employee on
permanent sick leave. The claimant took the decision on that question without any contribution
from the defendant.
The third basis of claim: failure to warn
50. The third basis of the claim was that the claimant's case satisfied the Scally's case [1991]
ICR 771 criteria. That is to say all three of the criteria identified by Lord Bridge, at p 781 (para
21 above), were satisfied. The judge held that the first two criteria were more or less satisfied but
that the claimant failed at the third hurdle. Mr White submits that the judge was wrong. As he
points out, the kernel of the judge's reasoning was that the claimant could reasonably have been
expected to be aware of the terms of *1631 the scheme, since (a) the claimant as much as any
other director could be expected to familiarise himself with the terms of the scheme, and (b) he had
access to Mr Suffell for advice. As regards (a), Mr White submits that the claimant, who had no
individual responsibility for administering the scheme, could not be assumed to have familiarised
himself with its contents. The scheme was complex and not easy for a lay person to understand.
The defendant had not supplied its employees with an explanatory booklet as in Eyett's case [1999]
ICR 721 . As for (b), the claimant was off work suffering from depression. There was no reason to

suppose that he was receiving advice from Mr Suffell. The question is not whether it would have
been possible for the employee to find out about the relevant provision of the scheme, but whether
he could reasonably have been expected to be aware of it. Mr White also submits that the judge's
approach has the difficulty that a duty would be owed to a lower paid junior employee without
access to independent advice, but not to a senior employee who enjoys access to such advice, even
though both were employed under identical contracts of employment.
51. The third of the criteria propounded by Lord Bridge in Scally's case, at p 781h, is that "the
employee cannot, in all the circumstances, reasonably be expected to be aware of the term unless
it is brought to his attention". It is only in such a case that there is an implied term of the contract
that the employer will bring the term to the attention of the employee. The question, therefore, is
whether in all the circumstances the claimant could reasonably have been expected to be aware of
the term unless it was brought to his attention by the defendant. I am in no doubt that the judge
was entitled to conclude that, on the facts of this case, the claimant could reasonably have been
expected to be aware of the relevant provisions of the scheme even though they were not brought
to his attention by the defendant.
52. The judge was right to say that it is relevant that the claimant was a director and senior
employee of the company. I see no difficulty in holding that Lord Bridge's third criterion may
be satisfied in relation to some, but not all, employees of the same employer, even if they are all
subject to the same conditions of employment. The question whether the duty arises will always
depend on whether the employee can reasonably be expected to be aware of the existence of the
relevant provision unless it is brought to his attention by the employer.
53. The judge was also right to decide that the fact that the claimant had access to the advice of Mr
Suffell was of critical importance. I agree with Mr White that the question is not whether it was
possible for the claimant to find out about the terms of the scheme, but whether he could reasonably
have been expected to do so. It is implicit in the judgment that the judge was of the opinion that
the claimant could reasonably have been expected to seek the advice of Mr Suffell. Despite his
illness, he had consulted Mr Suffell in March 1997 and asked what needed to be done in order
to make a claim. On 24 April, Mr Suffell sent the claimant the necessary application forms, and
concluded: "If you have any queries whatsoever, please do not hesitate to contact me." Mr Suffell
had been his pensions adviser since about 1985. He could reasonably have been expected to seek
Mr Suffell's advice, especially in the light of the offer made in the letter of 24 April 1997. Despite
his illness, the claimant had also been well enough to attend meetings with KPMG in February and
March 1997 to discuss means by which capital gains *1632 tax could be avoided on the sale of
his shares. Finally, he had been well enough to examine his contract of employment and see that
the company could pay his salary for longer than six months after he had stopped work. It seems
to me in these circumstances, and bearing in mind his experience and seniority in the company,
that the judge was justified in concluding that the claimant could reasonably have been expected
to be aware of the provisions of the scheme.

Conclusion
54. It follows that for the reasons that I have given, the judge correctly rejected both the second
and third bases of claim. I would dismiss this appeal.
THOMAS LJ
55. I agree.
SIR ANDREW MORRITT V-C
56. I also agree.
Appeal dismissed.
Representation
Solicitors: Ford & Warren, Leeds ; Clyde & Co, Guildford .
(C M T )
(c) Incorporated Council of Law Reporting for England & Wales

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Crossley v Faithful & Gould Holdings Ltd, [2004] I.C.R.

For educational use only

Sir Andrew Morritt V-C , Dyson and Thomas LJJ

2004 Feb 24; March 16

Employment—Contract of employment—Implied term—Employee in ill—health resigning—

© 2021 Thomson Reuters. 1

On the claimant's appeal-

The following cases are referred to in the judgment of Dyson LJ:

Hagen v ICI Chemicals & Polymers Ltd [2002] IRLR 31

© 2021 Thomson Reuters. 2

© 2021 Thomson Reuters. 3

The facts are stated in the judgment of Dyson LJ.

Antony White QC for the claimant.

Cur. adv. vult.

© 2021 Thomson Reuters. 4

8. On 21 April 1997, he spoke by telephone to Mr Hall, the defendant's managing director.

9. On 22 April 1997, the claimant wrote to Mr Hall:

"Further to our recent conversation I enclose a copy of my consultant's letter regarding my

© 2021 Thomson Reuters. 5

12. By a letter dated 28 July 1997, Mr Hall wrote to the claimant:

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The nature of the claimant's case

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© 2021 Thomson Reuters. 8

© 2021 Thomson Reuters. 9

© 2021 Thomson Reuters. 10

© 2021 Thomson Reuters. 11

© 2021 Thomson Reuters. 12

31. In relation to (a), Elias J said, at p 39:

© 2021 Thomson Reuters. 13

Implied term to take care for economic well-being of employee

34. It is submitted by Mr Cavanagh that it is a prerequisite of such an implied term that it is

© 2021 Thomson Reuters. 14

© 2021 Thomson Reuters. 15

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© 2021 Thomson Reuters. 17

The facts of this case

The second basis of claim: the letter of 28 July 1997

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The third basis of claim: failure to warn

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© 2021 Thomson Reuters. 20

SIR ANDREW MORRITT V-C

56. I also agree.

Solicitors: Ford & Warren, Leeds ; Clyde & Co, Guildford .

(c) Incorporated Council of Law Reporting for England & Wales

© 2021 Thomson Reuters. 21

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