This week’s case round-up
Working from the park was not misconduct
Bartholomew v LK Group Ltd, High Court, 25 February 2003, All ER (D) 340
A managing director was found not guilty of misconduct for carrying out much
of his work in clubs, cafés and while walking in the park. The High Court
decided that over time, his employer had acquiesced to his unconventional work
style, and that, if it amounted to a breach of contract, his employer had
waived the right to rely on the breach to terminate his employment contract. of
In 1993, Bartholomew was employed as managing director of LK Group Ltd. His
working practices were unconventional, in that he often worked from home, in
his car, in cafés and while walking his dog. In 1998, LK Group was sold to
Schroeder Ventures, and retaining Bartholomew as MD was a key factor in the
sale. However, disputes subsequently arose about his work style, and he was
asked to complete a work schedule to account for his whereabouts.
In January 2001, he was summarily dismissed for gross misconduct for
unauthorised absence from the office, not working normal office hours and lying
about his whereabouts (as the work schedule was found to be inaccurate).
Bartholomew brought a claim for breach of contract in the High Court.
The court found in his favour. He was not guilty of gross misconduct, or
conduct amounting to a repudiatory breach in failing to give full and accurate
details of his true whereabouts and work pattern. It found there was no
deliberate dishonesty on his part.
Bartholomew had reasonably believed that his style of working was accepted
by his employer. Accordingly, nothing in his conduct justified his dismissal.
Cobley v Forward Technology Industries plc, C/A, 14 May 2003, All ER(D)
Cobley was a director and chief executive of Forward Technology Industries.
His service agreement specifically provided that on ceasing to be a director,
his employment would automatically terminate.
Following the company’s acquisition by a US company, Cobley was immediately
removed from the newly-formed board, and as a result, he was also dismissed
from his role as chief executive.
Cobley brought a complaint of unfair dismissal, which was defended on the
grounds that, following the acquisition, it was entirely fair and reasonable
for there to be a change in the board of directors and to dismiss Cobley from
his senior post.
The tribunal and the Employment Appeal Tribunal found that the reason for
Cobley’s dismissal fell within some other substantial reason (section 98 (1)
Employment Rights Act 1996), and that his dismissal was within the range of
reasonable responses open to the employer following the takeover. Cobley
His appeal was dismissed. The Court of Appeal confirmed that where
employment is directly linked to a position on the board of directors,
automatic dismissal as a result of removal from the board can be legitimate on
the grounds of ‘some other substantial reason’, and also fair.
Since Cobley had been lawfully removed from the board of directors, the
express provision within his service agreement took effect – automatically
resulting in the termination of his employment.