ABSTRACT
The recent (2024) Supreme Court decision in Tesco Stores Ltd v Union of Shop, Distributive and Allied Workers has attracted interest from across the legal community. For labour lawyers, the case provides a valuable opportunity to interrogate the legality of the controversial ‘fire and rehire’ practices that have become a constant of the industrial relations world in recent years. For contract and commercial lawyers, meanwhile, the case provides a new platform on which the continuing evolution of the common law jurisprudence on interpretation and implication of contract terms can continue to play out, while yet again proving a source of judicial disagreement. This article takes the present opportune moment to re-examine the continuously shifting approaches to commercial contract interpretation that have been adopted by courts over the course of the past half-century, both generally and specifically in relation to contractual disputes arising in the employment context. It seeks to demonstrate that, whilst the modern contextual approach to contract interpretation (along with its core, animating doctrine of commercial common sense) have seemingly receded in importance somewhat over the past decade, in very recent cases it seems to be making something of a comeback. Moreover, as the Tesco decision itself arguably demonstrates, we are today seeing fledgling signs of a bespoke employment-centred approach to contextual contract interpretation evolving, which is founded on what will be termed the Burrows-Simler doctrine of ‘industrial’ (in distinction from commercial) common sense. The article will further enquire as to the precise conceptual meaning of this term, along with its policy underpinnings and potential for future development.
€ (Westlaw)
Marc Moore, ‘Contract interpretation and the employment relation: from commercial to industrial common sense?’ [2026] Journal of Business Law (3) 288-306.
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