Free Employment Advice - Unfair dismissal: Common Law Remedy

M was a teacher employed by C. In 1993 a number of his female pupils complained of inappropriate sexual conduct. He was suspended from his employment. Four months later he was required to attend a disciplinary hearing. Following a number of other hearings he was dismissed. During the period between the suspension and the hearing he had begun to suffer psychiatric illness.

M complained to an employment tribunal which found that he had been unfairly dismissed and awarded him £11,000 compensation. In the meantime, he had started proceedings in the High Court for damages for psychiatric illness caused by the employers’ conduct of the disciplinary process. The claim was supported by a medical report which stated that his psychiatric illness had been caused by the suspension and by accompanying failure to make proper investigation. The claim was struck out by a High Court judge. M appealed to the Court of Appeal. That Court allowed the appeal and made the following points:

1. In Gogay v Hertfordshire County Council (2000), the Court of Appeal upheld an employee’s common law claim against her employers for damages caused by unjustifiable suspension not caused by dismissal. The claim in that case was in contract for breach of an implied term of mutual trust and confidence for damages for clinical depression caused by the suspension.

2. In Johnson v Unisys Ltd (2001), by contrast, an employee’s common law claim for damages allegedly caused by the manner of dismissal was struck out as not disclosing a reasonable cause of action. The House of Lords ruled that Parliament had not intended the statutory unfair dismissal compensation to coexist with a separate common law right to damages for the manner of dismissal. There was no overlap of jurisdiction.

3. The problem for the court in the present case was how to draw the line between the statutory and common law jurisdictions.

4. The existence of a common law claim in any given case should not depend on the chance that an employer chose not to terminate the contract by dismissal or that an employee chose not to treat his employer’s improper conduct as amounting to unfair dismissal.

5. The legislature could not have contemplated or intended that the employee would be required to choose at an early stage between accepting constructive dismissal and losing his common law claim or retaining his common law claim and losing his statutory entitlement for unfair dismissal.

6. Such a dilemma could produce great injustice in cases where there had been a malicious attempt by an employer to force constructive dismissal.

7. The judge had been wrong to strike out the claim.

Note:

This decision may be seen as a limitation of the principles set out in Johnson v Unisys Ltd in cases where they may cause injustice.