Boardman v Copeland Borough Council

Damages for wrongful dismissal remain subject to the established contractual measure. Loss resulting from the manner or circumstances of dismissal, including financial loss, injury to health, injured feelings and difficulty obtaining employment, is not recoverable in a common-law action where the claim is in substance for the consequences of dismissal. An employee cannot avoid that restriction by describing the relevant conduct as occurring during employment if the only damage proved followed dismissal. A new claim raised for the first time on appeal will generally be refused where it would be unfair to the opposing party. The Court of Appeal was bound by the House of Lords’ decision in Johnson v Unisys Ltd.

The claimant was employed by the respondent local authority as an Assistant Revenues Manager. After he pursued a dispute concerning a senior officer’s council-tax liability, he was disciplined and summarily dismissed.

He brought proceedings in the High Court for wrongful dismissal and various torts. The judge upheld the wrongful-dismissal claim but rejected or summarily disposed of the other claims. The judge awarded damages to be assessed, without determining the applicable measure.

The claimant appealed, seeking compensation for financial loss, damage to health and reputational harm arising from the manner of his dismissal. He relied principally on the implied obligation of trust and confidence and an employer’s duty to take care of an employee’s health. He also sought to raise misfeasance in public office. The central issue was whether those arguments could enlarge the common-law damages recoverable for wrongful dismissal.

1. Appeal dismissed. The Court of Appeal, comprising Schiemann LJ, Tuckey LJ and Hale LJ, agreed that the claimant could not recover more than the ordinary contractual measure for wrongful dismissal. The order required him to pay the defendants’ costs, with permission to appeal to the House of Lords refused and the costs judgment stayed for six weeks.
2. Following the House of Lords’ decision in Johnson v Unisys Ltd [2001] UKHL 13, the common law could not be developed to provide a general remedy for unfair circumstances attending dismissal. The statutory scheme for unfair dismissal, with its limits on application and compensation, was a material reason against such development. The same reasoning defeated a claim framed as a duty of care for loss caused by the manner of dismissal.
3. The claimant’s attempt to characterise his loss as resulting from conduct during the employment relationship did not succeed. He had neither pleaded nor established damage occurring during employment. The only damage shown followed dismissal, or its manner, and was therefore irrecoverable in the common-law action.
4. The proposed health claim was raised too late and would be unfair to the defendants. In any event, there was no evidence that the claimant was unusually vulnerable or that the relevant conduct had caused compensable physical or psychological injury independent of dismissal.
5. Hale LJ observed that an implied term might exist in the employment of local-government officers requiring the employer to act within relevant statutory or common-law powers and not require unlawful conduct. That observation did not affect the consequences of wrongful dismissal, which were conclusively governed by Johnson v Unisys Ltd.
6. The proposed claim in misfeasance in public office was not pleaded, advanced below, or identified in the appeal documents. It was unfair to allow it to emerge during the hearing, and the court was not persuaded that it could be made out.

• High Court: His Honour Judge Brown, sitting as a High Court judge, upheld the wrongful-dismissal claim, rejected the negligence and breach-of-public-duty claims, recorded that the assault claim had been abandoned, and dismissed the intimidation claim.
• Court of Appeal (Civil Division): The appeal was dismissed. Permission to appeal to the House of Lords was refused.