[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Virgin Net Ltd v Harper [2003] UKEAT 0111_02_0907 (9 July 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0111_02_0907.html Cite as: [2003] UKEAT 111_2_907, [2003] UKEAT 0111_02_0907

[New search] [Printable RTF version] [Help]

APPEARANCES

 

For the Appellant	MISS JANE McCAFFREY (of Counsel) Instructed by: Messrs Ashurst Morris Crisp Solicitors Broadwalk House 5 Appold Street London EC2A 2HA
For the Respondent	MR S CRAMSIE (of Counsel) Instructed by: Messrs Rhodes Lewis Solicitors 5 London Road Bicester Oxon OX26 6BU


 


HIS HONOUR JUDGE PETER CLARK

1. This case raises directly the question as to whether damages representing the loss of a chance of recovering compensation for statutory unfair dismissal are recoverable at common law in an action for wrongful dismissal in circumstances where that breach of contract arises from summary dismissal without proper cause and where, had contractual notice been given by the employer, the effective date of termination ("EDT") of the contract would have qualified the employee for unfair dismissal protection, but not otherwise.
2. In a Decision with Extended Reasons, promulgated on 29 November 2001 ("the first Decision"), an Employment Tribunal sitting at London (Central), having found that the Applicant, Miss Harper, was wrongfully dismissed, held that such damages were recoverable against her former employer, the Respondent Virgin Net Limited. By a further remedies decision with Extended Reasons dated 8 May 2002 that same Tribunal assessed damages for wrongful dismissal in the total sum of £40,558.61, made up of £9,514.04 in respect of three months net notice pay and the balance representing the full award she would have received had she been permitted under the terms of the Employment Rights Act 1996 ("ERA") to bring a claim of unfair dismissal, a claim on which the Tribunal held she would have succeeded, the dismissal being so clearly unfair (first Decision, paragraph 87). The total sum assessed was then netted down by the Tribunal to an award of £25,000, being the maximum recoverable in the Employment Tribunal under Article 10 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 ("the 1994 Order"). It is against the Tribunal's award of damages for the loss of a chance of recovering compensation for unfair dismissal that this appeal is brought by the Respondent employer. In this judgment we shall continue to describe the parties as below.

Background

3. The Applicant commenced employment with the Respondent on a temporary contract on 4 April 2000. With effect from 1 November 2000 that employment became permanent on terms contained in a letter from the Respondent dated 7 November 2000 and signed by both parties. She held a management position as Head of ISP Development at an annual salary of £57,750. By clause 7.1 the contract was terminable on three month's notice by either party; however, by clause 7.2, the contract was summarily terminable without notice in the event of serious misconduct on the part of the Applicant.
4. The particular incident which preceded the Applicant's summary dismissal occurred on 22 January 2001. It involved exchanges between the Applicant and a junior manager Diana Crawshaw. The details of that incident and subsequent disciplinary proceeding brought against the Applicant are set out at some length in the Tribunal's first Decision. In summary, the Director of ISP, Mr Knox, wrote to the Applicant calling her to a disciplinary hearing on 30 January; the charge was humiliating and reducing a junior member of staff (Ms Crawshaw) to tears. Following that disciplinary, by letter dated 9 February, Mr Knox administered a formal written warning to the Applicant for misconduct. Against that decision the Applicant appealed to Mr Johnson, Corporate Development Director, who upheld the written warning. He notified the Applicant of his decision by letter handed to her at about 1.15 p.m. on 2 March. However, Mr Knox had second thoughts about the Applicant's continued employment with the Respondent and at 5.15 p.m. the same day, 2 March, he handed her a letter of that date terminating her employment with immediate effect.
5. That letter read:

"Dear Sally

Virgin Net Limited – Your Employment

I write to confirm, with regret, that we are terminating your employment with effect from today, 2^nd March 2001.

You will receive all accrued salary and a payment for holiday due up to the termination date through the payroll in the usual way and the sums will appear in your P45 dated 2^nd March 2001.

In addition you will be paid £14,437.50 (less such UK tax and the statutory deductions that we are obliged to deduct from such payment). I hope some or all of this can be paid on a tax free basis, to the extent permissible under current legislation.

May I take this opportunity to thank you for the contribution that you have made to the company and to wish you all the best in the future."

6. In fact, the sum of £14,437.50, representing three month's gross notice pay was not paid to the Applicant, the Respondent contending that her summary dismissal without notice or pay in lieu was justified; a case which the Tribunal rejected by their first decision. We are told that the sum of £9,514.04, representing three month's net pay, payable to the Applicant under the Employment Tribunal's Order, has now been paid.

The Statutory Framework

7. The statutory right not to be unfairly dismissed was first granted to employees by section 22 of the Industrial Relations Act 1971 ("IRA"). From the outset the right was qualified by a requirement that the employee had completed a certain period of continuous employment at the EDT of the contract of employment. Under section 28 of the IRA that period was set at 104 weeks continuous service.
8. The qualifying period has varied by legislative amendment over the years between six months and two years. The current position, applicable to this Applicant's dismissal, is contained in section 108 (1) ERA. The right not to be unfairly dismissed (section 94) does not apply to the dismissal of an employee unless she has been continuously employed for a period of one year ending with the EDT for present purposes. This is not one of the special cases referred to in section 108 (3) where no qualifying period is required.
9. Originally, by section 23 (5) (b) IRA, EDT meant, in relation to an employee whose contract of employment is terminated without notice, the date on which the termination takes effect. That provision is now re-exacted in section 97 (1) (b) ERA. Thus, in a case of summary dismissal such as this, the EDT was the date of that summary dismissal. Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379. However, for the first time, paragraph 10 of Part III of Schedule 10 to the Employment Protection Act 1975 ("EPA") introduced a provision that, when an employee was dismissed with immediate effect, the EDT would be deemed to fall at the end of the statutory notice period.
10. That provision has survived and is now contained in section 97 (2) ERA, which provides:

(2) "Where-

(a) the contract of employment is terminated by the employer, and

(b) the notice required by section 86 to be given by an employer would, if duly given on the material date, expire on a date later than the effective date of termination (as defined by subsection (1)),

for the purposes of sections 108 (1)…the later date is the effective date of termination."

11. By section 97 (3):

"In subsection (2) (b) "the material date" means- …

(b) where no notice was given, the date when the contract of employment was terminated by the employer."

12. By section 86 (1) (a) the notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for between one month and two years is not less than one week's notice.
13. Thus, applying the statutory, as opposed to contractual, notice entitlement under section 86 (1) (a) the EDT of this Applicant's contract of employment was 9 March 2001. She had less than the one year's qualifying period required by section 108 (1). She had no statutory right not to be unfairly dismissed by her employer under section 94 (1).
14. Section 113 of IRA enabled the Lord Chancellor, by statutory instrument, to bring into the jurisdiction of the then Industrial Tribunal claims for damages for breach of contract of employment. That step was not taken until the 1994 Order was laid before Parliament under the provisions of the Employment Protection (Consolidation) Act 1978 ("EPCA"). Industrial Tribunal jurisdiction was extended to include claims by employees for breach of a contract of employment arising or outstanding on the termination of the employee's employment (Article 3). As we have observed, damages which an Employment Tribunal may award are, by Article 10, still limited to £25,000.
15. Thus the position facing the Applicant was this. She could not bring a claim of unfair dismissal before the Tribunal; she could bring a claim for wrongful dismissal, limited to £25,000. Any larger wrongful dismissal claim could be brought in the County Court or High Court. She opted to bring her wrongful dismissal claim in the Employment Tribunal.

The Passing References

16. From the early days of unfair dismissal protection, the possibility of recovering by way of common law damages for wrongful dismissal the compensation which might have been recovered by way of a statutory claim for unfair dismissal where summary dismissal by the employer prevented the employee from acquiring the necessary qualifying service which would have been completed had contractual notice been given, has been mooted by distinguished judges.
17. In Brindle v H W Smith (Cabinets) Ltd [1972] IRLR 125, Lord Denning MR said, in holding that dismissal took effect when notice expired, not when it was given, at paragraph 9:

9 "I would add at this point that I do not think the [1971] Act can be got round by wrongfully dismissing a person summarily or by giving him notice that is too short. No person should be able to take advantage of his own wrong in that way. If an employer should try to escape the Act by giving no notice at all or a notice that was too short, I should have thought that the Tribunal, by means of a claim for wrongful dismissal (see s.113 of the Act), or by some such way, would see that the employee would get the same compensation as he would have done if he had been given notice of a proper length."

Pausing there, following our earlier observation, Lord Denning was premature in thinking that the Industrial Tribunal could then hear a claim for wrongful dismissal. That was to wait until the 1994 Order became law.

18. Browne-Wilkinson P, presiding in the EAT, expressed a similar view in Robert Cort & Son Ltd v Charman [1981] IRLR 437, paragraph 14, as did Stephenson LJ, paragraph 32 and Sir David Cairns, paragraph 40-41, in Stapp v The Shaftesbury Society [1982] IRLR 326.
19. Each of those cases was concerned with the question of the EDT for the purposes of bringing a statutory complaint of unfair dismissal before the Tribunal. It follows, as Mr Cramsie accepts, that those remarks were made obiter, that is to say they were not necessary for the determination of the issue then before the court. For our purposes we acknowledge that the question in the present case was raised in those judgments, but was not definitively answered. That is our task.

The Common Law Cases

20. The starting point is the House of Lords decision in Addis v Gramophone Company Ltd [1909] AC 488. There, damages for wrongful dismissal were limited to the salary and commission to which the plaintiff would have been entitled during his contractual six months notice period; the manner of his dismissal did not sound in damages, nor did his inability to obtain fresh employment. So said Lord Loreburn LC, 490-491.
21. The ratio of that decision was much discussed by the House of Lords in Malik v BCCI [1997] IRLR 462, in the context of a claim for damages for breach of the implied term of mutual trust and confidence. That question does not strictly arise in the present case.
22. Addis was also considered more recently in Johnson v Unisys [2001] IRLR 279. There, the complainant, having been dismissed by the defendant, successfully brought a claim of unfair dismissal before the Tribunal. He was awarded compensation of just under £11,700, the Tribunal having applied the then statutory limit on the compensatory award.
23. Subsequently, he brought an action in the County Court, both for breach of contract and in tort. The nature of his case was that due to the manner of his dismissal by the defendant he had suffered a mental breakdown which had seriously damaged his life such that he would never work again. He calculated his future loss of earnings in the order of £400,000.
24. The County Court judge, Judge Ansell, in striking out the claim, said this, with the express approval of Lord Hoffman (paragraph 57):

"there is not one hint in the authorities that the...tens of thousands of people that appear before the tribunals can have, as it were, a possible second bite in common law and I ask myself, if this is the situation, why on earth do we have this special statutory framework? What is the point of it if it can be circumvented in this way?... it would mean that effectively the statutory limit on compensation for unfair dismissal would disappear"."

25. In the context of a claim for unlimited damages for breach of the implied term of mutual trust and confidence, including damages for psychiatric injury and its sequelae brought by Mr Johnson, Lord Hoffman (paragraph 66) was of the opinion that such a common law action in damages could not have been intended by Parliament to circumvent the restrictions and limits which Parliament had imposed on compensation for unfair dismissal.
26. The position was summarised by Lord Millett (paragraph 80) thus:

"But the creation of the statutory right has made any such development of the common law both unnecessary and undesirable. In the great majority of cases the new common law right would merely replicate the statutory right; and it is obviously unnecessary to imply a term into a contract to give one of the contracting parties a remedy which he already has without it. In other cases, where the common law would be giving a remedy in excess of the statutory limits or to excluded categories of employees, it would be inconsistent with the declared policy of Parliament. In all cases it would allow claims to be entertained by the ordinary courts when it was the policy of Parliament that they should be heard by specialist tribunals with members drawn from both sides of industry. And, even more importantly, the co-existence of two systems, overlapping but varying in matters of detail and heard by different tribunals, would be a recipe for chaos. All coherence in our employment laws would be lost."

27. Accordingly, the House of Lords (Lord Steyn dissenting on the reasoning of the majority, but not in the result) dismissed Mr Johnson's claim for damages at common law based on the fact that he was dismissed without a fair hearing and in breach of the employer's disciplinary procedure amounting to a breach of the implied obligation of trust and confidence. That was the ratio of the House of Lords decision in Johnson. We return to certain obiter remarks made by Lord Hoffman in connection with the heads of compensation recoverable in a statutory unfair dismissal complaint (paragraph 55) later in this judgment. We shall refer to those remarks as "the Johnson v Unisys point".
28. Prior to the House of Lords decision in Johnson v Unisys, three decisions of the EAT were reported on the question as to whether the loss of a chance to bring an unfair dismissal claim due to early termination of the contract of employment sounded in damages at common law. Each case involved claims before an Employment Tribunal brought under the 1994 Order.
29. In Focsa Services (UK) Ltd v Birkett [1996] IRLR 325, an Employment Tribunal Chairman held that the Applicant's contract of employment contained an implied term that the Respondent employer would not unfairly dismiss him, in circumstances where the Applicant was dismissed after four month's service so that he did not qualify for statutory unfair dismissal protection. On appeal, we rejected that proposition.
30. In Janciuk v Winerite Ltd [1998] IRLR 63 a division presided over by Morison P rejected a Tribunal finding that where an employee was dismissed in breach of the terms of the contractual disciplinary procedure he could recover damages at common law for the loss of a chance that had the disciplinary procedure been complied with he might not have been dismissed. The EAT confirmed the principle laid down by the Court of Appeal in Lavarack v Woods of Colchester Ltd [1967] 1 QB 278 that the employee falls to be compensated by way of damages on the basis that the employer will be taken to have performed the contract in the least burdensome way in which it could lawfully be performed. That is, dismissal with contractual notice or pay in lieu thereof once the disciplinary procedure had been exhausted. See Gunton v London Borough of Richmond upon Thames [1980] IRLR 321; Boyo v London Borough of Lambeth [1995] IRLR 50.
31. We can see no difference in approach between the EAT cases of Focsa Services and Janciuk. The third case, Raspin v United News Shops Ltd [1999] IRLR 9 (Judge Hicks QC presiding) is closer to the facts of the present case than either of those earlier cases. There, the Applicant employee was dismissed shortly before completing the then qualifying period of service for unfair dismissal protection, two years' service. Her complaint of wrongful dismissal succeeded. The issue for the EAT was whether, contrary to the finding of the Tribunal, she was entitled to damages for loss of the chance of recovering compensation for unfair dismissal had her employment not been prematurely terminated. The EAT held that she could; concluding that where an employer dismissed an employee in breach of contractually binding procedural requirements, at a date when she had no right to complain of statutory unfair dismissal, her damages should reflect her loss of the chance of recovering compensation for unfair dismissal had the disciplinary process been completed, so that she would then have acquired the necessary qualifying period of service to bring the statutory claim.
32. For completeness we should also refer to the Scottish Court of Session decision in Morran v Glasgow Council of Tennants Associations [1998] IRLR 67. It was there held that where there was an express contractual right for the employer to terminate the contract summarily with pay in lieu of contractual notice the employee's claim for damages for breach of contract could not include a sum to compensate him for the loss of the right to pursue an unfair dismissal claim which he would have acquired, by virtue of having completed the necessary statutory qualifying period, had contractual notice of termination been given. The court expressed no opinion on the position had there been no contractual right to terminate summarily with pay in lieu of notice. The position in this case.
33. Since Johnson v Unisys the Court of Appeal has drawn a distinction between cases in which the claim for damages is based on a breach of the implied term of mutual trust and confidence relying on events prior to and unconnected with the dismissal and those where the manner of the dismissal itself is relied on as amounting to the breach of trust and confidence. Following Johnson, claims for psychiatric injury based on a contractual breach where no dismissal is involved are permissible; where they include the fact of dismissal itself, they are not. Eastwood v Magnox Electric Plc [2002] IRLR 447; McCabe v Cornwall County Council [2003] IRLR 87. That distinction is consistent with the ratio in Johnson v Unisys and the Court of Appeal decision in Gogay v Hertfordshire County Council [2001] IRLR 703. The Scottish Court of Session reached a similar conclusion in King v University of St Andrews [2002] IRLR 252.

The Appeal

34. On 15 May 2003 we heard oral argument in this appeal on Miss McCafferty's principal submission that the Tribunal was wrong in principle to award damages to the Applicant for loss of the opportunity to pursue an unfair dismissal claim. At that time it was known that Burton P was shortly to deliver a judgment on the Johnson v Unisys point in three conjoined appeals. Judgment in those cases, the lead case being Dunnachie v Kingston upon Hull City Council (EAT/0726/02/RN), was delivered on 22 May. In case that judgment contained anything material to the present case we formally adjoined it for any written representations which Counsel wished to make on Dunnachie. In the event, Mr Cramsie, by letter dated 16 June to the EAT, initially expressed the view that the present appeal was unaffected by the President's judgment in Dunnachie; Miss McCafferty, on the other hand, submitted a 12-page document dated 17 June, drawing on the judgment in Dunnachie. Mr Cramsie then responded to those submissions by letter dated 25 June. We have taken those further representations by Counsel into account in reaching our determination in the appeal.
35. Further, by letter dated 30 May Miss McCafferty formally withdrew an alternative argument, contained in paragraphs 4 (8) – (10) of the Notice of Appeal, on which we had not heard argument. Those grounds went to the quantum of the Tribunal's award in respect of the loss of a chance damages; if the Tribunal was correct in allowing that head of claim.
36. In support of the Tribunal's decision to award damages for the lost chance to claim statutory unfair dismissal compensation, Mr Cramsie submits that damages for wrongful dismissal should put the Applicant in the position in which she would have been but for the Respondent's breach of contract. There is no appeal against the Tribunal's finding of wrongful dismissal. He argues that there is no difference between the claim for the lost chance here and a claim in contract (as well as tort) for damages for solicitor's negligence where the solicitor has, for example, failed to issue an unfair dismissal complaint in the Tribunal in time. The claim here is for loss of the statutory right to bring a complaint of unfair dismissal, not the manner of dismissal (cf. Eastwood and McCabe).
37. Unlike Morran, there was in the present case no contractual entitlement for the Respondent to summarily terminate the contract with pay in lieu of notice and in the event such payment was not immediately made by the Respondent. He relies on the EAT decision in Raspin as being directly on point. The 'passing references' in Brindle, Charman and Stapp are of persuasive, although he accepts not binding, authority.
38. He does not accept that the scheme of ERA, in particular the limits on an Tribunal's jurisdiction to entertain an 'ordinary' unfair dismissal complaint under section 108 (1), precludes a common law claim for damages for wrongful dismissal including the loss of the chance to bring unfair dismissal proceedings caused by premature termination by the employer of the contract of employment. Nor does he accept that the Applicant here is advancing a claim based on the manner of dismissal (cf. Johnson v Unisys); rather, damages for the loss of her right to bring a statutory claim of unfair dismissal.
39. For the most part we find ourselves unable to uphold those submissions for the following reasons, based on the case advanced by Miss McCafferty:

(1) Parliament has decided that the statutory right not to be unfairly dismissed under section 94 (1) ERA will be subject to certain limitations. One restriction on the right, in ordinary unfair dismissal cases (cf. the special cases under section 108 (3)), is that the complainant must first have completed one year's continuous service (section 108 (1)). The end date of the period of continuous service is the EDT, to be calculated in accordance with section 97 ERA. Originally, that was simply the date on which the termination took effect (see now section 97 (1) (b)). However, since the 1975 EPA the EDT has been extended to include, in a case of summary dismissal, the length of statutory notice to which the employee was then entitled under what is now section 86 ERA (see section 97 (2) (b)). It was open to Parliament then and has been open to Parliament since in succeeding legislation, to extend the date not simply by reference to the statutory minimum notice entitlement, but by reference to the contractual notice period where that is longer. Parliament has chosen not to do so. That is why, in the present case, Miss Harper is unable to bring a statutory claim of unfair dismissal. In these circumstances, it seems to us, the observations in Johnson v Unisys by Lord Hoffman (paragraph 66) and Lord Millett (paragraph 80) apply with equal force to the loss of a chance claim advanced by the Applicant in this case. Quite simply, she is seeking to circumvent the restrictions and limits which Parliament has imposed on compensation for unfair dismissal. That is impermissible. To allow such a head of claim would, in the words of Lord Millett, "be a recipe for chaos". All coherence in our employment laws would be lost.

(2) We are less concerned, with respect, about Lord Millett's further observation that this head of claim would be entertained by the ordinary courts instead of specialist Tribunals which, as a matter of policy, Parliament has entrusted to decide. First, because, where the wrongful dismissal claim is limited to £25,000, it will be the Employment Tribunal which hears the claim. Secondly, because, as Mr Cramsie points out, the civil courts are asked to decide professional negligence claims (including breach of contract claims) against solicitors who have failed to launch proceedings in time and the assessment of damages in such cases will include an exercise based on the loss of the chance, in a case of unfair dismissal, of the claimant successfully pursuing the underlying Tribunal claim.

(3) As a matter of binding authority, we consider ourselves required to follow the ratio in Johnson v Unisys, as explained by the Court of Appeal in Eastwood and McCabe. Applied to the present case, that means that an Applicant cannot recover, by way of damages for breach of the contract of employment, loss flowing from the fact of and manner of the dismissal itself. The present case is a paradigm example. The Applicant's complaint is directed solely to Mr Knox's decision to summarily dismiss her at 5.15 p.m. on 2 March 2001. Until then she had been subject to disciplinary proceedings which had, only four hours earlier, resulted on internal appeal in a formal written warning, that is action short of dismissal, being upheld. It is solely the fact of dismissal, itself certainly unfair in the view of the Tribunal, which gives rise to this head of loss.

(4) True is that had the Applicant received her full three month's contractual notice she would, following termination, have qualified for unfair dismissal protection. In that sense she has suffered a potential loss. However, in fact she has suffered no loss because the statutory scheme precludes an employee from complaining of unfair dismissal in these circumstances.

(5) The 'passing references' in the cases of Brindle, Charman and Stapp are just that. The observations in those cases were made, we assume, without full argument because they go to a matter which did not arise in those cases, each of which involved unfair dismissal complaints, not claims for damages for wrongful dismissal at common law. The inherent danger of relying on such remarks as a basis for decision in later cases where the particular point arises for determination is well-illustrated by the Johnson v Unisys point. At paragraph 55 Lord Hoffman considered the question as to whether compensation for psychiatric injury was recoverable as part of a claim for compensation for statutory unfair dismissal. His Lordship said this:

55 "…But perhaps I may be allowed a comment all the same. I know that in the early days of the National Industrial Relations Court it was laid down that only financial loss could be compensated: see Norton Tool Co. Ltd v Tewson [1972] IRLR 86; Wellman Alloys Ltd v Russell [1973] IRLR 616. It was said that the word 'loss' can only mean financial loss. But I think that is too narrow a construction. The emphasis is upon the Tribunal awarding such compensation as it thinks just and equitable. So I see no reason why in an appropriate case it should not include compensation for distress, humiliation, damage to reputation in the community or to family life."

The result of those remarks, made in March 2001, has, to paraphrase Lord Millett in the same case, been a lack of uniformity in the Tribunals. A significant divide grew up between those Tribunals which awarded 'Johnson v Unisys' compensation for unfair dismissal and those which did not. That division has now been removed, subject to further appeal, by Burton P in Dunnachie. The point was subjected to intense scrutiny during full argument resulting in a closely-reasoned judgment running to 51 pages which concluded that non-economic loss of the type envisaged by Lord Hoffman is not, and never has been, recoverable in unfair dismissal cases. It seems to us that Dunnachie is of relevance to the present case for this general proposition; beware of founding a decision on earlier obiter remarks, however distinguished may be the author of those remarks. We are also comforted that our conclusion on the point raised in the present case is consistent with the President's analysis of the effect of the ratio in Johnson v Unisys in Dunnachie, an analysis with which we respectfully agree.

(6) Finally, Raspin. Mr Cramsie submits that we cannot allow this appeal without saying that Raspin was wrongly decided and that we should follow that earlier EAT decision. We should point out that whilst, as a matter of comity, we will normally follow earlier EAT decisions, we are not bound to do so. More substantively, we repeat our warning as to the dangers of making observations which are not strictly necessary for determining the present case. Insofar as the decision in Raspin may properly be said to rest on the fact of dismissal and events leading to it, it was wrongly decided in the light of the ratio of the House of Lords in the subsequent case of Johnson v Unisys (see, e.g. the judgment of Sedley LJ in McCabe, paragraph 48). On the other hand, insofar as the decision rested on events unconnected with the dismissal, in particular the failure to follow contractual disciplinary procedures, it may arguably be said to have survived Johnson. For present purposes, it is unnecessary to resolve that question since we are quite satisfied that on the facts of the present case the Applicant's claim for damages for the lost chance is solely based on the fact of and manner of dismissal. It therefore falls foul of the principle in Johnson v Unisys; itself applying the original House of Lords decision in Addis v Gramophone Company Ltd [1909] AC 488; it is an impermissible attempt to circumvent the unfair dismissal legislation. The Tribunal here was wrong to consider themselves bound to follow and apply Raspin so as to conclude that such a head of damage was recoverable in this wrongful dismissal claim.

Conclusion

40. It follows that, in broad terms, we prefer the submissions of Miss McCafferty to those of Mr Cramsie. The appeal will be allowed and we shall set aside that part of the Tribunal's award which exceeds three month's net pay in lieu of notice, £9,514.04.