EMPLOYMENT LAW

The employee took part in “action short of a strike” as part of a national dispute over pay for university lecturers. The action involved a boycott of certain duties. The university imposed a 30% reduction in salary for staff who were taking such action.

HELD The fact that the employer has not locked out the employee by barring them from the workplace nor prevented them from doing other work, does not itself amount to acceptance by the employer of the work that the employee in fact undertakes as sufficient performance of the contract. The quantum meruit principle does not apply to such cases:

“employees engaging in collective industrial action take the risk that even if they present for work and undertake some or the most part of their ordinary duties the employer may pay them nothing at all of what they might otherwise be paid. If they get anything it will be more than they were legally entitled to expect.

All the more so where (as in this case) the employer had expressly said that full pay will not be paid to participants and that any payments made will be substantially less than normal salary. If, having taken the risk, the employee is dissatisfied with the result, I do not consider that the law of contract—through the medium of ‘quantum meruit’—gives rise to any lawful claim” (para 61).