The Elective and Automatic Theories of Termination in the Common Law of the Contract of Employment: Conundrum Resolved?

14 Pages Posted: 2 Nov 2013

See all articles by David Cabrelli

David Cabrelli

University of Edinburgh - School of Law

Rebecca Zahn

University of Strathclyde Law School

Date Written: November 2013

Abstract

If a party to an employment contract commits a repudiatory dismissal or resignation, it has long been unclear whether the other party has the option either to terminate or affirm the contract (the elective theory) or whether the former's breach operates to bring the contract of employment to an end (the automatic theory). The recent decision of the Supreme Court in Société Générale (London Branch) v Geys has finally resolved this question. By a majority, the Supreme Court held that the elective theory also applies in the context of a wrongful repudiation of the employment contract by express dismissal or resignation. This note examines the significance of Geys in the context of the common law of the contract of employment and evaluates whether a number of related issues surrounding the breach and termination of the employment contract have been resolved.

Keywords: Employment Law, Contract of Employment, Termination of the Contract of Employment, Gunton v Richmond‐upon‐Thames London Borough Council, Société Générale (London Branch) v Geys

Suggested Citation

Cabrelli, David Louis and Zahn, Rebecca, The Elective and Automatic Theories of Termination in the Common Law of the Contract of Employment: Conundrum Resolved? (November 2013). The Modern Law Review, Vol. 76, Issue 6, pp. 1106-1119, 2013, Available at SSRN: https://ssrn.com/abstract=2348943 or http://dx.doi.org/10.1111/1468-2230.12049

David Louis Cabrelli (Contact Author)

University of Edinburgh - School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

Rebecca Zahn

University of Strathclyde Law School ( email )

16 Richmond Street
Glasgow 1XQ, Scotland G1 1XQ
United Kingdom

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