Employment Law

Eighth edition

by Deborah Lockton

Update for Chapter 8

Termination at Common Law

This update was last revised in October 2012
8.6 Reasons for dismissal

At the end of the discussion please note

However, although at common law discovery of misconduct may render a wrongful dismissal lawful, this is not a defence to a debt claim according to the Court of Appeal in Cavenagh v Williams Evans Ltd [2012] EWCA Civ 697. In the case the claimant was made redundant and his contract summarily terminated with six months payment in lieu of notice as per his contract. The employer subsequently discovered that the claimant was guilty of gross misconduct prior to termination and therefore it withheld the payment in lieu. The Court of Appeal held that the claimant had acquired an accrued right to the payment as his contract had been terminated under the relevant contractual provision and there was no provision in the contract for payment to be withheld. The principle that after discovered misconduct could defeat a wrongful dismissal claim was not a defence to a debt claim.
8.8 Remedies for wrongful dismissal

Before the discussion of Gregory v Wallace please note

This has recently been reaffirmed by the Supreme Court in Edwards v Chesterfield Royal Hospital and Botham (FC) v Ministry of Defence [2011] UKSC 58

After the discussion of Gregory v Wallace please note

Another example of an employer not taking enough care in documents is seen in Publicis Consultants v O'Farrell [2011] UKEAT 0430/10 where an employee who was entitled to three months notice, was dismissed with four days notice. The dismissal letter stated that she would receive an ex gratia payment equivalent to three months salary. She claimed a breach of contract and sued for an additional three months payment. The employer stated that the payment ha been intended to represent three months salary. The EAT held that the letter was unambiguous and stated that the payment was ex gratia and not contractual. As such the employee was entitled to a further three month payment.