The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair dismissal is a complete system, and was intended to replace any common law action for damages arising from the manner of dismissal. The statutory system allowed a tribunal to award such compensation as it thought just and equitable. It is no longer proper to try to treat contracts of employment as commercial contracts. The statutory system could include damages for matters beyond the purely financial. The statutory system included elements of policy foreign to the common law system. Nevertheless damages might properly be awarded for losses by way of psychiatric damages and consequent losses which arise from the manner of dismissal where that was a breach of the contractual duty of good faith. It would not be appropriate to attempt to achieve the same result by subjecting the employer’s contractual rights to a tortious duty of care.
Lord Hoffmann said: ‘At common law the contract of employment was regarded by the courts as a contract like any other. The parties were free to negotiate whatever terms they liked and no terms would be implied unless they satisfied the strict test of necessity applied to a commercial contract. Freedom of contract meant that the stronger party, usually the employer, was free to impose his terms upon the weaker. But over the last 30 years or so, the nature of the contract of employment has been transformed. It has been recognised that a person’s employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem. The law has changed to recognise this social reality. Most of the changes have been made by Parliament. The Employment Rights Act 1996 consolidates numerous statutes which have conferred rights upon employees . . ‘
Lord Bingham of Cornhill Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Millett
Times 23-Mar-2001, [2001] UKHL 13, [2001] IRLR 279, [2001] 2 All ER 801, [2001] 2 WLR 1076, [2001] ICR 480, [2003] 1 AC 518
House of Lords, Bailii
Employment Rights Act 1996
England and Wales
Citing:
Appeal from – Johnson v Unisys Limited CA 4-Dec-1998
The claimant had been dismissed. He said the manner of his dismissal had caused him to suffer a mental breakdown, and claimed for loss of earnings. He asserted a duty on an employer not to dismiss him in such a way as to infringe the duty of trust . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Explained – Addis v Gramophone Company Limited HL 26-Jul-1909
Mr Addis was wrongfully and contumeliously dismissed from his post as the defendant’s manager in Calcutta. He sought additional damages for the manner of his dismissal.
Held: It did not matter whether the claim was under wrongful dismissal. . .
Cited – Scally v Southern Health and Social Services Board HL 1991
The plaintiffs were junior doctors employed by the respondents. Their terms had been collectively negotiated, and incorporated the Regulations. During the period of their employment different regulations had given and then taken way their right to . .
Cited – Spring v Guardian Assurance Plc and Others HL 7-Jul-1994
The plaintiff, who worked in financial services, complained of the terms of the reference given by his former employer. Having spoken of his behaviour towards members of the team, it went on: ‘his former superior has further stated he is a man of . .
Cited – West Midland Baptist (Trust) Association (Inc) v Birmingham Corporation HL 1970
The mere fact that an enactment shows that Parliament must have thought that the law was one thing, does not preclude the courts from deciding that the law was in fact something different. The position would be different if the provisions of the . .
Cited – United Bank Ltd v Akhtar 1989
An employer’s express right to transfer an employee may be qualified by the obligation of mutual trust and confidence. . .
Cited – Foaminol Laboratories Ltd v British Artide Plastics Ltd 1941
There is no justification for artificially excising from the damages recoverable for breach of contract that part of the financial loss which might or might not be the subject of a successful claim in defamation. A claim for mere loss of reputation . .
Cited – Malloch v Aberdeen Corporation HL 1971
A common law action for wrongful dismissal can at most yield compensation measured by reference to the salary that should have been paid during the contractual period of notice. Lord Reid said: ‘At common law a master is not bound to hear his . .
Cited – Walker v Northumberland County Council QBD 16-Nov-1994
The plaintiff was a manager within the social services department. He suffered a mental breakdown in 1986, and had four months off work. His employers had refused to provide the increased support he requested. He had returned to work, but again, did . .
Cited by:
Cited – Morrow v Safeway Stores Plc EAT 21-Sep-2000
The complainant appealed a decision that she had not been constructively dismissed. She had been told off in public, causing her great distress. The tribunal had found the employer’s behaviour regrettable but not such as to break the duty of trust . .
Cited – McCabe v Cornwall County Council, The Governing Body of Mounts Bay School CA 23-Dec-2002
The claimant sought damages for the consequences of having been suspended from work as a teacher. He later recovered damages for unfair dismissal, and the court had struck out his claim for damages over and above those already awarded.
Held: . .
Cited – Kenneth Cobley v Forward Technology Industries Plc CA 14-May-2003
The claimant had been chief executive and a director of the respondent for many years, but was dismissed upon it being taken over. His contract of employment as chief executive provided that it was to be coterminous with his appointment as director. . .
Examined – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Cited – Eastwood v Magnox Electric plc CA 2002
There was a claim for damages in respect of psychiatric injury said to result from a breach of the implied term of trust and confidence, which was asserted to be recoverable notwithstanding Johnson, on the basis that the acts of the employer . .
Cited – Boardman v Copeland Borough Council CA 13-Jun-2001
The claimant had ‘neither pleaded nor shown any damage to him during the course of his employment which resulted from his employer’s conduct. The only damage which is demonstrated is that which followed from his dismissal and, arguably, the manner . .
Cited – Horkulak v Cantor Fitzgerald International QBD 31-Jul-2003
The claimant sought damages for constructive dismissal. He said that verbal abuse he had suffered from the manager damaged his health and destroyed the relationship of trust and confidence.
Held: The manager was dictatorial and saw it as his . .
Cited – Sally Harper v Virgin Net Limited CA 10-Mar-2004
The employee had been dismissed. Her contractual notice period was longer than the statutory period.
Held: The statutory notice period prevailed in calculating the date of dismissal. The contractual period could not be used to extend the total . .
Cited – Dunnachie v Kingston Upon Hull City Council CA 11-Feb-2004
Compensation for non-economic loss brought about by the manner of an unfair dismissal is, on authority and on principle, recoverable. The award of such compensation by the employment tribunal in the present case was not excessive and was adequately . .
Cited – Dunnachie v Kingston-upon-Hull City Council HL 15-Jul-2004
The claimant sought damages following his dismissal to include a sum to reflect the manner of his dismissal and the distress caused.
Held: The remarks of Lord Hoffmann in Johnson -v- Unysis were obiter. The court could not, under the section, . .
Cited – Eastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and others HL 15-Jul-2004
The first claimants were long standing employees. Mr Eastwood fell out with his manager, who disciplined him using false statements. When Williams refused to provide a false statement he too was disciplined. Each claimed damages for the injury to . .
Cited – Kaur v MG Rover Group Ltd CA 17-Nov-2004
The applicant was employed by the respondent who had a collective agreement with a trade union.
Held: Not all elements of the collective agreement need be intended to be legally enforceable. She complained that the collective agreement would . .
Cited – Reda, Abdul-Jalil v Flag Limited PC 11-Jul-2002
PC (Bermuda) The courts should be reluctant to accept a fetter on the employer’s right to dismiss on notice where there is an express term in the contract empowering the employer to do so.
Lord Millet . .
Cited – Total Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – Morrow v Safeway Stores Plc EAT 21-Sep-2001
The claimant appealed against dismissal of her claim of unfair constructive dismissal. She complained of having been publicly told off. The court considered whether this amounted to a breach of a fundamental term of her contract entitling her to . .
Cited – GAB Robins (UK) Ltd v Triggs CA 30-Jan-2008
The claimant had been awarded damages for unfair constructive dismissal. The employer appealed an award of damages for the period prior to the acceptance by the employee of the repudiatory breach.
Held: Where a claimant’s losses arose before . .
Cited – Edwards 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 . .
Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust CA 26-May-2010
The claimant, a consultant doctor, sought damages saying that his employer had failed to follow the contract when disciplining and dismissing him. The GMC had dismissed as unfounded the allegation on which the dismissal was based. He sought damages . .
Cited – Botham v The Ministry of Defence QBD 26-Mar-2010
botham_modQBD10
The claimant had been employed by the MOD. He was summarily dismissed for gross misconduct, and he was then placed on the list of persons unsuitable for work with children. He succeeded at the Tribunal in a claim for unfair and wrongful dismissal. . .
Cited – Gisda Cyf v Barratt SC 13-Oct-2010
The parties disputed the effective date of termination of the claimant’s employment. Was it the date on which the letter notifying her was sent, or was it on the day she received it. She had been dimissed without notice, and the date was the date on . .
Cited – The Child Poverty Action Group v Secretary of State for Work and Pensions SC 8-Dec-2010
The Action Group had obtained a declaration that, where an overpayment of benefits had arisen due to a miscalculation by the officers of the Department, any process of recovering the overpayment must be by the Act, and that the Department could not . .
Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust SC 14-Dec-2011
The claimant had been employed as consultant surgeon. He had been dismissed in a manner inconsistent with the extress terms of his employment contract. He sought common law damages for the manner of his dismissal. The employer appealed.
Held: . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Cited – Braganza v BP Shipping Ltd SC 18-Mar-2015
The claimant’s husband had been lost from the defendant’s ship at sea. The defendant had contracted to pay compensation unless the loss was by suicide. They so determined. The court was now asked whether that was a permissible conclusion in the . .
Cited – Sharpe v The Bishop of Worcester CA 30-Apr-2015
Reverend Sharpe applied for the post of Rector of Teme Valley South. The right to present (or nominate) a member of the clergy to this living was vested in Mr and Mrs Miles but a person could not be nominated without the Bishop’s approval, which was . .
Cited – Prudential Assurance Company Ltd v Revenue and Customs SC 25-Jul-2018
PAC sought to recover excess advance corporation tax paid under a UK system contrary to EU law. It was now agreed that some was repayable but now the quantum. Five issues separated the parties.
Issue I: does EU law require the tax credit to be . .
Lists of cited by and citing cases may be incomplete.
Employment, Damages
Leading Case
Updated: 31 October 2021; Ref: scu.82561