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The claimant's appeal against a decision to strike out her claim was allowed. Whilst the judge was entitled to allow the second defendant to withdraw its prior admissions of liability, he should have allowed the claimant permission to amend her particulars of claim regarding the date of termination of her employment, which would enable her to argue that her case fell outside of the ‘Johnson exclusion zone' which prevents claims for damages arising out of the manner in which employment is terminated.
10 July 2013
Court of Appeal
Moore-Bick J, Sullivan LJ, Underhill LJ
Following reorganisation, the first defendant wrote to the claimant, who they employed as an administrator, advising that her employment would end on 31 August 2008 due to redundancy. However, on 10 July 2008 she was asked to leave and was publicly escorted from the premises. She claimed for unfair dismissal in the employment tribunal which was compromised. She brought proceedings for personal injury caused by the events of 10 July 2008. The second defendant wrote to the claimant admitting liability and in their defence they admitted that they failed to exercise reasonable care in the manner in which they brought the claimant's employment to an end on 10 July 2008. However, they became aware of the decision in Johnson v Unisys  UKHL 13,  AC 518 namely that damages cannot be recovered at common law for the consequences of the fact or manner of dismissal. They applied for permission to withdraw their prior admission and for an order striking out the claim. The claimant's claim was struck out on the grounds that it could not succeed as a matter of law in the face of the decision in Johnson v Unisys. The claimant appealed.
She submitted that the judge was wrong to allow the second defendant to withdraw its admissions because it was unnecessary to do so in order to raise the Johnson point and because, in the light of the way the tribunal case had been conducted and compromised, it was unconscionable to do so. She also argued that her dismissal had in fact taken place on 31 August 2008 so that her claim fell outside of the Johnson exclusion. The claimant argued that the parties compromised the tribunal proceedings in the knowledge that she was making a personal injury claim and in the assumption that she had an arguable case, and it was therefore unconscionable for the second defendant to later argue that she had no cause of action. However, the compromise agreement contained no recognition that she had a good cause of action; it simply preserved her right to pursue such a claim. The judge thought that it would be wrong to allow the claim to proceed on a false basis and was entitled to take that view. Since the second defendant did not take issue with the facts, the claimant suffered no significant prejudice in the preparation of her case.
Although damages for personal injury were not recoverable in an action for wrongful dismissal, a claim at common law before dismissal was available. The claimant's position in the tribunal case was that her employment terminated with her exclusion on 10 July 2008. The claimant obtained nothing from the tribunal proceedings which depended on her having been dismissed on 10 July 2008 and the defendant was not therefore prejudiced by her change of position. It was not an abuse of process for her to later contend that her employment came to an end on 31 August 2008. The point had been raised in argument and the judge should have allowed the claimant to rely on 31 August 2008 as the date of termination of her employment instead.
The claimant was given permission to amend her particulars of claim in relation to the date of termination of her contract of employment and her appeal against the decision to strike out her claim was allowed.
This case clarifies that whilst Johnson v Unisys remains authority for the principle that damages cannot be claimed for the consequences of the fact or manner of dismissal, the employer is not entirely free of any duty of care in relation to dismissal. Damages can still be claimed in relation to events leading up to that dismissal and the claimant's claim was allowed to proceed on that basis.
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