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An employee was not entitled to damages for the failure of his employer to follow disciplinary procedures. The attempt to introduce the idea of loss of a chance into the quantification of a dismissed employee’s damages for breach of contract would be a heresy.
Morison J P said: ‘Some contracts of employment require the employer to follow a disciplinary procedure before notice of dismissal can be given. In other words, the disciplinary procedure acts as a brake on the giving of notice. In such a case, the employer would be acting in breach of contract if he gave notice terminating the contract without first having followed the correct procedure. The measure of loss for that breach is based upon an assessment of the time which, had the procedure been followed, the employee’s employment would have continued. Again, that does not require an analysis of the chances that had the procedures been followed the employee might never have been dismissed. At this stage the court is engaged on a process of quantifying damage suffered by a dismissed employee. The court is concerned to know what would have happened contractually, if instead of unlawfully dismissing the employee the employer had not broken the contract, bearing in mind the Lavarack v Woods principle. For this purpose, the assumption that must be made is that the employer would have dismissed the employee at the first available moment open to him; namely after the procedure had been exhausted. The court is not concerned to inquire whether the employee would have been dismissed had the contract been performed, but rather for how long would the employee have been employed before the employer was contractually entitled to give notice. This is on the assumption that the employer has not been accused of acting in bad faith where other principles might apply. ‘

• Edwards -v- Chesterfield Royal Hospital NHS Foundation Trust, QBD, Cited, (Bailii, [2009] EWHC 2011 (QB), [2009] IRLR 822)