Private Law Theory

INTRODUCTION
This article has two purposes. The first is to answer a simple question: where an employee refuses to accept a wrongful dismissal by their employer and decides to keep the contract open, why are they unable to sue in debt for their salary or wages, instead being limited to a claim for damages? This is ‘one of the great unresolved questions of employment law’ and it was expressly left unresolved by the Supreme Court in Geys v Société Générale. That case rejected the ‘automatic theory’ of termination and held that, following an actual or anticipatory breach, a contract of employment can only be brought to an end at the election of the innocent party. But that then raises the question: ‘if the employee decides to keep the contract alive, why should [they] not be allowed to sue for [their] salary or wages’? The article argues that the answer is to be found in the conditions of an employee’s entitlement to claim a salary or wages (a ‘condition’ here being used in the sense of a ‘condition precedent’ or ‘concurrent condition’) …

€ (Westlaw)

Jordan English, ‘Employment contracts, conditions, and the relationship of employment’, (2024) 140(Oct) Law Quarterly Review 521-543.