Case - Wliuszynski v. London Borough of Tower Hamlets

[1989] ICR 493,[1989] IRLR 258, Court of Appeal - Paul Rose QC, Lord Hendy QC

W was a member of a union which as a result of a dispute with W's employers, the council, called for limited industrial action to be taken in the form of the boycott of council members' enquiries. W was told that if such action was complied with then he should not come to work at all and if he did attend for work and attempted to undertake limited work then it would be regarded as voluntary and unauthorised and would not be paid for. W continued to work as instructed by his union. The council refused to pay him for the time worked during the industrial action and R sued for payment. W's claim was upheld on the grounds that he had been substantially performing his contract and that higher management had acquiesced in it and the council took the benefit of the work.

HELD: allowing the council's appeal and refusing leave to appeal to the House of Lords, that the High Court had erred in holding that the council was not entitled to withhold pay for the relevant period. An employee's considered statement that he will not discharge a material part of his contractual duties is a repudiatory breach of contract. Termination of the contract is not the only remedy available to the employer. If an employee expresses that he will not for a period of time perform a material part of his contractual services then the employer is entitled to decline to accept the proffered partial performance.

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