Notesale: Turn your study into money

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WRONGFUL DISMISSAL
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With few exceptions, before 1971 employer could dismiss employee for any reason or even no
reason
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One of only issues was when employee not allowed to serve notice then could sue for breach of
contract
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Replaced by Employment Protection (Consolidation) Act 1978
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Action for unfair dismissal now most common course for employees to take to challenge
dismissal
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The nature of Wrongful Dismissal
- Traditionally three main situations in which common law damages arising from breach of
contract could occur:
o Employee dismissed without appropriate notice period being given (in effect a summary
dismissal that cannot be justified)
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o Employee employed under contract which stipulated the only circumstances under which
dismissal could occur and the employer dismissed the employee for some other reason
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Dis issed a d gi e si o ths oti e afte ule i t odu ed that fe ale offi e s e ui ed
to resign on getting married
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Health Service argued that not wrongful since her contract
could also be terminated on reasonable notice
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Hence WD is action for breach of contract and only concerned with form of manner of dismissal
and not with merits or fairness of it
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Would hardly benefit many employees since damages restricted for eg remainder of notice
period which would likely be minimal
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o Very high paid employees such as executive directors where statutory maximum for UD
may mean more to gain from breach of contract claim for WD
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Can also result from very long notice periods eg Clark v BET 1997 where notice
period three years!

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o Employees excluded from UD claims, eg employee with insufficient continuous
employment to claim UD or who is ineligible might bring WD claim although damages
likely to be low
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o Shaw LJ in Gunton v London Borough of Richmond 1980: des i ed WD as total
repudiation which is at once destructive of the contractual relationship
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Ie could sue for damages, discharge own obligations or carry on the contract if in his
interests
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Bringing an action for wrongful dismissal
- Until July 1994 action had to be taken in County Court or High Court
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- S
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3 Employment Tribunals Act
1996) brought into force by the Employment Tribunals Extension of Jurisdiction (England and
Wales) Order 1994
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Now C has choice of which would be more
advantageous
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If brought
in court, then since breach of contract action, claimant has SIX YEARS to bring a claim
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Because of reluctance of courts, main remedy is damages
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In this
case, damages limited to the notice period within the contract
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Loss of pension rights can also be counted
since they count as wages
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Be o e only 12 days after
date of redundancy letter and had he worked until this would have been entitled to
nearly £6k more than he had received
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- Loss of other benefits such as use of company car can also be claimed to extent they relate to
notice period given
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- Subsidised mortgages share options, private medical insurance can all be quantified to form part
of damages award
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o Ma e Geo ge Ed a ds Dal s Theat es Ltd
: American Actress contracted to
perform play in London with promise of full publicity for her role
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Court awarded damages for both loss of
salary AND loss of reputation
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 Ba kes LJ ………
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o Same in Herbert Clayton & Jack Waller Ltd v Oliver 1930 where actor promised leading
role but given minor role
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However courts will not award anything for the manner of the dismissal
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o Addis v Gramophone Co Ltd 1909: Manager dismissed and replaced before he even left
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Although court agreed with WD claim, refused
damages for mental distress caused by manner of dismissal
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o As development to this it has also been established that unfairness of manner of
dismissal cannot form basis for action in either contract or tort
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Claimed UD on breach of implied term
of mutual trust and confidence
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Would not allow to claim any more as argued
eati g a pa allel ight to da ages ould go agai st Pa lia e t s lea
intentions
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 Eastwood v Magnox Electric plc; McCabe v Cornwall CC 2004: Joined appeals
where both dismissed following lengthy but flawed disciplinary procedures
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McCabe teacher accused of improper behaviour with
female pupils
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Both also claimed breach
of contract and negligence
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HL held
cause of action in common law accrued before any dismissals occurred and
suggested Johnson be reconsidered
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This
situatio
e its u ge t atte tio
the go e
e t a d legislatu e
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In this case that will involve taking reasonable steps to find
comparable work
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Although after reasonable
time may have to be a little less selective
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When he refused was only entitled to
nominal damages as had failed to mitigate his loss
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Award of damages takes into account any tax/ NI contributions but under s
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INJUNCTIONS
- Courts reluctant to directly or indirectly enforce contract of employment, sometimes referred to
as ule agai st e fo e e t , as elatio ship is highl pe so al o e
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Would t gi e he ages a d also stopped he
taking paid work without express approval from apprentice master
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However some exceptions:
o Possible for negative restraint clause to be included in contract which court will enforce
when employee has promised not to do certain things
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She
entered into another contract against this
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Court content that brief duration of contract in no way
interfered with ability to earn a living and as such was reasonable in the
circumstances
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E plo e
ote to C ho efused so ga e o e o th s oti e of dis issal
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Had o l
ea s left till eti e e t a d
dismissal would have detrimental effect on pension rights and therefore sought
injunction to lengthen period of notice
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Also defined rule against
enforcement as one of fact and NOT law
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o Remedy is equitable and is discretion of court
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Employer was trying to implement different criteria
and employee complained
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