New Judgment: Edwards v Chesterfield Royal Hospital NHS Foundation Trust; Botham v MoD [2011] UKSC 58
14 Wednesday Dec 2011
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On appeal from: [2010] EWCA Civ 571 and [2010] EWHC 646 (QB)
Both cases involved the scope of damages recoverable at common law by an employee who had been dismissed through a disciplinary procedure that failed to comply the terms of the employment contract.
The employers’ appeals were allowed by a majority; employees could not recover damages for loss suffered as a result of a breach of a term in their employment contract as to the manner of their dismissal, unless the loss could be said to precede and be independent of the dismissal. Compensation for the manner of dismissal was limited to what might be recovered under the Employment Rights Act 1996. Parliament specified the consequences of a failure to comply in unfair dismissal proceedings. It could not have intended that they would also give rise to a common law claim for damages. Unless the parties express otherwise, they are taken not to intend that a failure to comply with contractual disciplinary procedures would give rise to a common law claim for damages.
For judgment, please download: [2011] UKSC 58
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII
1 comment
Mark Benney said:
15/12/2011 at 10:00
When I was an undergraduate we used to say that this or that judgment was a “charter” for some sort of mischief. The current state of the law is a charter for cynical and dishonest employers to victimise and harass honest employees in the knowledge that their potential liability is capped to a level that for large corporations is petty cash.
Access to legal representation in tribunals is patchy for employees and trade union support is uneven and not always of high quality.
Legal aid in unfair dismissal may be an answer but this seems unlikely under this or any foreseeable alternative government.
Another possibility is to increase the 25% uplift, but the ceiling should go to at least 100%. Ideally there should be no ceiling. Again, unlikely to happen.
Growth of contingency fees may help, but why should employees have to hand over a huge slice of any compensation as the price of getting justice?
A thoroughgoing review of the costs regime in ETs may be the answer, with increasing use of CFAs. But more costs orders would be a bad idea in the majority of “bog standard” unfair dismissal cases. And CFAs will become less attractive in 2012 with the reform of the success fee rules.
Perhaps costs should be on the civil court basis only where the employee has a CFA…
Three cheers for Lady Hale, though – I suspect that “puzzlement” is as close as SC Justices get to outright hostility to their colleagues. The majority certainly seems to be living in another world, as indeed it does.