United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G NICHOLSON (in person)
For the Respondent


 


JUDGE PETER CLARK: The Appellant, Mr Nicholson, joined the Respondent, Budget Insurance Ltd, from Peterborough College where he was employed as a law lecturer, on 1 August 1995. At that time he was given an assurance by the Respondent that his new position was likely to be of a permanent nature. He did not wish to leave the security of his academic post unless his new employment was likely to be permanent.

Prior to joining the Respondent he signed a standard employment agreement which provided for one month's notice on either side.

In the Autumn of 1996 the Appellant produced a spoof article for which he was later summarily dismissed on about 11 December 1996. It follows that he had less than two years qualifying service for the purposes of bringing a complaint of unfair dismissal.

After his dismissal he presented an Originating Application to the Industrial Tribunal complaining of wrongful dismissal, breach of contract.

The matter became before a Chairman, Mr J A Threlfell, sitting alone at the Leicester Industrial Tribunal on 29 May 1997. He found that the Appellant had not been guilty of gross misconduct at Common Law, that his dismissal was wrongful and that he was entitled to his net pay for the contractual notice period, which was agreed in the sum of £1,113.

He rejected an argument by the Appellant that he was entitled to any further damages for loss of his promised long term employment and/or for breach of an implied term that the employer would not treat the employee in an arbitrary or vindictive manner. The position was covered, in the Chairman's judgement, by the express agreed term as to notice.

Against that decision the Appellant now appeals and, with charm and candour, has invited us to break new ground. He accepts that, subject to the possibility of an award of stigma damages under the House of Lords decision of Malik v BCCI [1997] IRLR 462, the weight of authority is against the proposition that a complainant in the Appellant's position can recover any damages beyond the net earnings lost during the notional notice period.

We have considered the morality of his submission. Here is a man who has secure employment, who is persuaded to leave it on the promise that his new employment will be long-term and who is then unjustifiably dismissed in breach of the implied term that the employer will not act arbitrarily or vindictively. He has, as a result, suffered loss which extends beyond the notional notice period. We can see the force of his contention; that the Common Law ought to be in a position to remedy that loss.

Having set out the moral dimension, we are a court of law and not of morals. We are not prepared to depart from authority which is timeless as to the proper basis for quantifying damage for wrongful dismissal. We are not prepared extend the principle in Malik beyond the facts of that case, which presuppose that the corrupt and dishonest way in which the employer's business was run amounted to a breach of the implied term of mutual trust and confidence to be found in the employee's contract of employment, in circumstances where it might be possible for the plaintiff to show that his future employment prospects were undermined by the fact of the corruption associated with the employer. Those limited facts do not extend to this case.

The short answer to this appeal is that we are not prepared to break new ground. We shall apply the law as it has always been understood and, it must follow, dismiss this appeal.