Case round-up

Case round-up by Eversheds 020 7919 4500

No recovery fornon-pecuniary losses
Dunnachie v Kingston-upon-Hull City Council and other appeals, EAT,
2003, All ER(D) 320

These three conjoined appeals concerned claims for unfair dismissal where
the applicants were also claiming compensation for non-pecuniary losses (injury
to feelings), following the House of Lords decision in Johnson v Unisys Ltd,
2001, IRLR 279.

In two of the cases, the applicants had been awarded compensation for injury
to feelings, but in the third, the tribunal concluded that it had no
jurisdiction to make such an award.

The EAT confirmed that prior to Johnson, there had been no basis for
claiming non-pecuniary losses in claims for unfair dismissal in the employment
tribunal. Furthermore, since the views expressed by Lord Hoffman in Johnson had
not directly related to the decision in that case, they were not binding.

Following an examination of the construction of the statute and the
underlying policy arguments, the EAT was satisfied that the fundamental nature
of the claim for unfair dismissal was limited to economic losses up to the
statutory cap of £53,500.

This was the intention of the legislation, and no additional award of
damages could be made for distress/depression/humiliation/loss of family life
resulting from a dismissal, unless Parliament decided to amend the legislation.

The EAT was clear the tribunal had no jurisdiction to award non-pecuniary
losses. The various appeals in the three cases were upheld or dismissed as
appropriate, but the parties were given leave to appeal to the Court of Appeal.

Employee should have been informed of vacancy
Paul v Visa International Service Association, EAT, 2003, All ER(D) 265

During Paul’s maternity leave, the company advertised two vacancies, and an
external candidate was appointed. Paul lodged a grievance, complaining that she
had not been informed of the vacancies, despite having expressed prior interest
in that area of work. Visa argued that it had not informed her of the vacancies
because she did not have the relevant experience.

Following Paul’s threat to resign, Visa asked her to reconsider, but warned
that if she did resign, it would recoup her enhanced maternity benefit. Paul
resigned and claimed unfair dismissal, pregnancy-related detriment and
dismissal, and sex discrimination.

The tribunal found that Visa’s omission to inform Paul about the posts had
fundamentally breached the implied term of mutual trust and confidence between
the parties. Accordingly, Paul had been constructively dismissed, and her
dismissal was automatically unfair (under s99 ERA 1996).

Visa’s failure to notify was held to be a deliberate act amounting to a
detriment under s47C ERA 1996 and the tribunal also upheld Paul’s complaint of
sex discrimination. At a remedies hearing, she was awarded £25,943, but no
separate award was made in respect of the unfair dismissal and breach of s47C.

The EAT dismissed the company’s appeal against the tribunal’s decision, but
it upheld Paul’s appeal against the amount of compensation she had been
awarded. The tribunal had not mentioned a basic award in their remedies
decision or reasoning, and it ought to have reviewed its decision on that

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