Wrongful Dismissal Flashcards
Do you need to give a reason for dismissal if there is proper notice?
“Ridge v Baldwin , Reda v Flag
Dismissal of a ordinary worker or employee could be given for any or no reason
Generally, when can you give a summary dismissal?
Employer entitled to terminate summarily if employee’s conduct undermined employer’s trust and confidence in him/her = no breach.
Whether misconduct depends on particular employment - Neary v Dean of Westminster [1999]
- Off duty conduct may allow summary dismissal – Pearce v Foster (1886)
- Esher MR “if the servant’s conduct is so grossly immoral that all reasonable men would say that he cannot be trusted, the master may dismiss him”. (Pay v UK)
- Adeshina v St George’s University Hospital: deliberate disengagement and unprofessional behaviour by senior employee at meeting was gross misconduct”
“if the servant’s conduct is so grossly immoral that all reasonable men would say that he cannot be trusted, the master may dismiss him”.
Pay v UK
“Do you need Gross misconduct to summarily dismiss someone?
- do tribunals have to take into account ACAS?”
“Mbubaegbu v Homerton University Hospital Hospital NHS Foundation Trust (2018)
- No, course over time can. EAT decided that there is no requirement for an act of gross misconduct to have taken place at all in order for a summary dismissal to be lawful - course over time can.
- Acas Code of Practice on Discipline and Grievance, which tribunals are supposed to take account of when judging reasonableness, effectively no longer appears to carry any weight whatsoever.
- compare this to: 207-207A TULRCA.”
effectively allows employers to create a new class of misconduct that falls between ‘gross’ and ‘ordinary’, namely ‘serious’ and to summarily dismiss people for such offences even when they fall short of ‘gross misconduct’ as defined in the Acas code.
“Quintiles Commercial v Barongo (2018)
The EAT then overturned this ruling, stating that there was nothing in the relevant statute that said misconduct had to be gross in order that a summary dismissal was lawful.
Whether misconduct depends on particular employment
“Neary v Dean of Westminster
Church organ player”
Off duty conduct may allow summary dismissal
Pearce v Foster
Damages for Wrongful Dismissal
Contract damages assume contract-breaker (employer) could have terminated contract in least costly way. The normal measure of damages is just amount employee would have earned in notice period.
- Gunton v Richmond [1980] - amount the employee would have earned if the employer lawfully terminated contract
- Addis v Gramophone Co
Restrictions: no damages for
1) reputational injury;
2) manner of dismissal;
3) injury to feelings;
4) exemplary damages.
- Mahmud v BCCI : breach of TC could allow damages for stigma (= loss of reputation). breach of TC could allow damages for stigma (= loss of reputation).”
Procedural Protections for wrongful dismissal? Wills rules of natural justice apply?
McClory v Post Office - ““I do not consider it right to import the rules of natural justice, which are connected with judicial decisions and some administrative decisions, into the purely contractual relationship of employer and employee”
= wrongful dismissal sees this more contractually”
“Many employees have disciplinary procedure. The crucial common law question: do they have contractual effect?
No compensation for ‘loss of chance’ that employee would have been cleared of misconduct if procedure were followed - Janciuk v White [1998]
Edwards v Chesterfield - cannot claim damages for even express term breach
Mutual Trust and Confidence: Common Law Job Security?
Implied term of trust and confidence (and other terms) restraining employer discretions
- United Bank v Ahtkar: (unfettered mobility clause -> but subject to good faith duty (reasonable notice))
Mahmud v BCCI : breach of TC could allow damages for stigma (= loss of reputation). breach of TC could allow damages for stigma (= loss of reputation).”
Implied duties in contract - does the employer have more?
James-Bowen v CPM (2018)
Supreme Court found in favour of the chief constable. There is no implied duty to protect employees from reputational or economic harm. The duty of care relates to physical and mental health and the court was not prepared to take the opportunity to create any further implied duties. “
Potential development of common law actions for dismissal effectively choked off
“Johnson v Unisys and the Johnson ‘exclusion zone’
- already won unfair, but needed more than cap.
- “Johnson exclusion zone”: majority held that implied term of trust and confidence does not apply to termination of relationship (though it does to all other contractual rights)
Parliament has ‘occupied the field’ and the statute pre-empted common law development (compare Lord Steyn) -> cannot terminate into other statutory regime (SEPERATION OF POWERS)
How to ID Johnson exclusion zone?
Eastwood v Magnox [2004]
- damages could be recovered for breaches of contract based on pre-dismissal events, such as is in disciplinary procedures, even though not for dismissal itself
Edwards v Chesterfield Royal Hospital [2012] : The SC has now gone further and held that the Johnson exclusion zone applies to preclude claim for breach of an express term of contract (unless only where there is a specific further agreement in the contract to that effect)”
Breach of an Express Term in exclusion zone?
“Edwards v Chesterfield
Only remedy: injunction to go through procedure. Treats unfair dismissal legislation as a ceiling, not floor.
- It is possible to claim damages but only where there is a further agreement in the contract that breach of the procedural term can be remedied through damages.
- the employee will need to act quickly; no claim can be brought in the ET; and the claims are potentially very expensive (legal costs) and so they tend to be confined to the professions, or highly paid executives (Robb v Hammersmith)
Article 8 ECHR is meant to protect against loss of reputation caused by dismissal - yet Edwards precludes damages for precisely this even where it results from breach of an express term (though Article 8 was not argued in Edwards).”
