Wise Group v Mitchell

EAT: Rimer J, Mr T Haywood and Mr P R A Jacques: 11 February 2005

The claimant's contract of employment entitled her to one month's notice. Five weeks before she had completed one year's employment, she was summarily dismissed for a disciplinary offence with a payment of one month's salary in lieu of notice. An employment tribunal upheld her complaint of wrongful dismissal on the ground that the employers were in breach of the contractual disciplinary procedure in failing to carry out an investigation and hearing. The tribunal found that, had that procedure been followed, the claimant would have completed a year's continuous employment by its conclusion, and it directed damages to be assessed to include, inter alia, compensation for loss of the opportunity either to continue working for the employers, or, if as a result of the disciplinary process she would have been dismissed anyway, to bring an unfair dismissal claim.

The employers appealed.

The Employment Appeal Tribunal held:
(1) Where an employee was dismissed wrongfully, in breach of contract, before he had acquired a statutory right not to be unfairly dismissed, he had no statutory claim for unfair dismissal and, even if under his contract of employment he could only lawfully have been dismissed after he had completed one year's continuous service, he was not entitled to recover common law damages from his employer for the loss of the chance of bringing an unfair dismissal claim. Accordingly, the employment tribunal were in error in directing an assessment of compensation on that basis.
(2) Damages for loss in cases of wrongful dismissal were limited to the sums that would have been payable to the employee had the employment been lawfully terminated under the contract of employment, since an employer was entitled to dismiss on contractual notice at common law for whatever reason. Accordingly, once a dismissal had taken place it was irrelevant to consider what might have happened had a contractual disciplinary procedure been followed. To the extent that the employers acted unfairly in the steps leading up to the claimant's dismissal, that unfairness did not itself cause her any loss and there could be no common law claim in respect of it.

The appeal was allowed.

Appearances: Derek O'Carroll (Law at Work, Glasgow) for the employers; Mrs P Thoburn, representative, for the claimant.