McCabe v Cornwall County Council

The statutory remedy for unfair dismissal does not automatically exclude every common-law claim arising from earlier conduct. The court must determine, on the facts, whether the conduct causing the alleged injury formed part of the dismissal process or constituted a distinct antecedent wrong. Relevant considerations may include the employer’s intention and consistency of conduct, warnings, any natural break before dismissal, the timing and nature of the alleged injury, and the relationship between the conduct and the dismissal. The mere fact that a claimant pursued an employment tribunal remedy, or that the tribunal considered similar facts, does not determine whether a separate common-law cause of action survives. Where the issue depends on unresolved fact and developing law, striking out is inappropriate.

Mr McCabe, a teacher, was suspended after allegations of inappropriate sexual conduct were made by pupils. He alleged that the respondents failed for several months to inform him of the allegations or conduct a proper investigation, causing psychiatric illness. He was later dismissed and obtained the statutory maximum compensation for unfair dismissal, subject to the applicable statutory scheme.

He commenced High Court proceedings and sought permission to amend them to claim damages in contract for breach of mutual trust and confidence and in negligence for breach of the duty to provide a safe system of work. The High Court refused permission and struck out the claim, treating the earlier suspension and investigation as part of the dismissal process. The central issue was whether the pleaded earlier conduct was necessarily subsumed within the statutory dismissal remedy.

1. Appeal allowed. The claim should not have been struck out. The proposed amended pleading was to proceed, with the factual and legal issues left for trial.
2. The statutory scheme governing unfair dismissal and the common law may overlap, but Johnson v Unisys Ltd established that there is no common-law remedy for the unfair manner of dismissal itself. It did not establish that every breach occurring before dismissal is necessarily part of the dismissal.
3. The boundary is fact-sensitive. The question is whether the conduct causing the alleged injury was sufficiently close to the dismissal in time and circumstance to form part of it. Length of the disciplinary process is not decisive. Relevant matters may include the employer’s intention at different stages, the nature and pattern of warnings, whether there was a natural break before dismissal became a practical proposition, and whether the alleged injury is attributable to particular earlier conduct.
4. The actual result in Eastwood & Williams v Magnox Electric PLC was not a binding factual comparison or a blueprint for every case. The suggested concept of an unbroken causal chain was insufficient because causation and the legal characterisation of conduct as part of dismissal are different questions.
5. The survival of a common-law claim does not depend on how the claimant framed the tribunal proceedings or how the tribunal characterised the claim. A tribunal award may be relevant to preventing double recovery, but that is distinct from determining whether a separate cause of action exists.
6. The court therefore left it to the trial judge to decide whether the suspension, failure to provide particulars and failure to investigate were wrongful, caused the psychiatric injury, and were part of the dismissal process or a separate antecedent wrong.

• Court of Appeal: allowed the appeal from the order of His Honour Judge Overend, who had refused permission to amend and struck out the claim.
• High Court, Queen’s Bench Division: refused permission to substitute the proposed contractual and tortious claims and struck out the proceedings as disclosing no cause of action.