Focsa Services (UK) Ltd v Birkett: EAT 30 Jan 1996

An IT was wrong to calculate damages for breach of contract as if it was a finding of unfair dismissal.
Clark J said: ‘The fallacy in our judgment, in the chairman’s reasoning is to disregard the normal common law rules as to loss in cases of wrongful dismissal. That loss is limited to the sums payable to the employee had the employment been lawfully terminated under the contract. Once a dismissal has taken place, as was accepted and found in this case, it is irrelevant to consider what might have happened had a contractual disciplinary procedure been followed. An employer is entitled to dismiss on contractual notice at common law for whatever reason.
The fact is that Mr Birkett was dismissed. In so far as he did not receive his full notice, he is generally entitled to damages to reflect the pay during the notice period and no more. The only exception is where employment would have been extended by operating the disciplinary procedure: Boyo v London Borough of Lambeth [1995] IRLR 50; Gunton v London Borough of Richmond-upon-Thames [1980] IRLR 321 . .’

Judges:

Clark J

Citations:

Gazette 10-Jul-1996, (1996) IRLR 325, [1996] UKEAT 826 – 95 – 3001

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedEdwards v Chesterfield Royal Hospital NHS Foundation Trust QBD 31-Jul-2009
The claimant, a consultant surgeon had been subject to disciplinary proceedings by his employer. They were however conducted in a manner which breached his contract. The GMC had summarily dismissed the same allegations. The claimant now appealed . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 19 May 2022; Ref: scu.80619