Employees free to claim ‘twice’ over dismissals

Court of Appeal rules that an employee may be able to claim damages for
dismissal and to  make a separate claim
for treatment leading up to that dismissal

The law has been confused for some time on whether
an empl-oyee can claim damages for the manner of dismissal. In the latest case,
McCabe v The Governing Body of Mounts Bay School & others, 2002, EWCA Civ
1887, the Court of Appeal gives some guidance.

Previous case law – Johnson v Unisys Ltd, 1999, ICR 809 and Eastwood &
Williams v Magnox Electric Plc, 2002, EWCA Civ. 463 – held that a claim cannot
be brought regarding the manner of dismissal or conduct prior to that if it was
simply part of the process of dismissal.

However, in Gogay v Hertfordshire County Council, 2000, IRLR 703 the Court
of Appeal upheld an employee’s claim for breach of contract of an implied term
of mutual trust and confidence for damages relating to clinical depression
caused by unjustifiable suspension.

In Gogay the suspension was not followed by dismissal. However, this meant
an employer was better off, according to Johnson, if it dismissed the employee
rather than follow a procedure, because a dismissal seemed to
"extinguish" any pre-existing claim for breach of implied terms. Whereas,
if like Gogay, there was no dismissal, a claim could be made.

McCabe was a teacher. In May 1993 girl pupils complained against him of
inappropriate sexual conduct. He was suspended and interviewed but given no
details of the allegations, and instead was offered a formal written warning,
which he refused.

Still suspended, nearly four months elapsed before he learned of the
allegations when called to a disciplinary hearing.

During that period he began to suffer psychiatric illness. Over the following
three years there were three disciplinary hearings leading to his dismissal,
notwithstanding that the school had characterised his alleged conduct as
"a relatively trivial affair".

He claimed unfair dismissal and won. He also claimed in the High Court,
seeking damages for breach of mutual trust and confidence and breach of the
duty to provide a safe system of work in relation to psychiatric injury caused
by disciplinary process leading up to dismissal. The claim was struck out as
being a claim about the manner of the dismissal. He appealed, arguing that the
conduct of the school prior to dismissal should be separated from the dismissal

The court upheld his appeal. It held that it is a question of fact for the
trial judge to determine, on each case, whether a line should be drawn between
dismissal (covered only by unfair dismissal legislation) and conduct prior to
it causing injury (compensable in damages in common law). So, even where a
breach of contract or duty of care is followed by dismissal, it may be possible
to claim in the high Court for damages in respect of the former, and in the
tribunal for the latter (subject obviously to the principle of double

Key points

The question will be whether breaches complained of prior to
dismissal are sufficiently linked to the eventual dismissal to bar a common law
action and restrict the employee’s remedy to an unfair dismissal claim.
Relevant factors are:

– The length of disciplinary process eventually giving rise to

– Whether the employer embarks on disciplinary proceedings with
dismissal in mind

– The nature and pattern of any warnings

– Whether there is a natural break in the process before
dismissal becomes a practical proposition

– Attribution of the alleged injury to the time and nature of
the particular conduct of which complaint is made

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