The Supreme Court has ruled that a worker cannot claim damages for their employer’s failure to follow a contractual disciplinary procedure [CDP] – if the worker's loss was a result of their dismissal.
However, a worker can make such a claim - if their loss was a result of their employer’s conduct before the dismissal – and the conduct did not form a part of the dismissal process.
Edwards v Chesterfield Royal Hospital NHS Foundation Trust & Botham v Ministry of Defence [2011] UKSC 58
Comment
Although a breach of contract claim in relation to a CDP will only succeed if the claim falls outside of the "Johnson exclusion area" [see para. 50] - a disciplinary procedure should clearly state that it is non-contractual – in order to avoid such claims.
TUPE
An employee’s dismissal by an administrator was automatically unfair – because it was connected with a TUPE transfer - although the transfer had not been contemplated - or a transferee had not been identified - at the date of the dismissal.
The Court of Appeal approved the EAT’s decisions in the Harrison Bowden and Morris cases. And it disapproved the EAT’s decision in the Ibex case [see para. 49].
Spaceright Europe Ltd v Baillavoine [2011] EWCA Civ 1565
However, a worker can make such a claim - if their loss was a result of their employer’s conduct before the dismissal – and the conduct did not form a part of the dismissal process.
Edwards v Chesterfield Royal Hospital NHS Foundation Trust & Botham v Ministry of Defence [2011] UKSC 58
Comment
Although a breach of contract claim in relation to a CDP will only succeed if the claim falls outside of the "Johnson exclusion area" [see para. 50] - a disciplinary procedure should clearly state that it is non-contractual – in order to avoid such claims.
TUPE
An employee’s dismissal by an administrator was automatically unfair – because it was connected with a TUPE transfer - although the transfer had not been contemplated - or a transferee had not been identified - at the date of the dismissal.
The Court of Appeal approved the EAT’s decisions in the Harrison Bowden and Morris cases. And it disapproved the EAT’s decision in the Ibex case [see para. 49].
Spaceright Europe Ltd v Baillavoine [2011] EWCA Civ 1565
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