Botham v The Ministry of Defence

A common-law claim for damages arising from disciplinary breaches before dismissal falls within the Johnson exclusion where the alleged loss results from the dismissal rather than directly from the earlier breaches. The characterisation of the loss as stigma damages does not alter that conclusion. Claims for earnings, benefits and litigation expenses caused by dismissal cannot circumvent the statutory unfair-dismissal or employment tribunal costs regimes. A distinct pre-dismissal cause of action may remain actionable where financial loss flows directly from the antecedent breach, but that exception did not apply.

The claimant, a Ministry of Defence employee, was dismissed for gross misconduct after disciplinary proceedings. The Employment Tribunal found that the dismissal was unfair and awarded compensation, including damages for wrongful dismissal during the contractual notice period. The claimant then brought High Court proceedings alleging breaches of express and implied contractual disciplinary obligations, claiming further loss of earnings, benefits and legal expenses.

The issues were whether the pleaded claim disclosed a cause of action outside the Johnson exclusion, whether it had merged with the earlier wrongful-dismissal claim, and whether the proceedings were an abuse of process under Henderson v Henderson.

1. Johnson exclusion. The claim was dismissed because the Particulars of Claim did not disclose a well-founded common-law claim for damages outside the Johnson exclusion. The relevant question is whether the claimed loss flowed directly from a pre-dismissal breach or instead arose from the dismissal. The claim for loss of earnings and benefits was based on the same loss addressed in the unfair-dismissal proceedings and arose when, and by reason of, dismissal.
2. The case was not an exceptional case of the kind recognised in Eastwood v Magnox Electric plc; McCabe v Cornwall County Council. The alleged breaches in the disciplinary process were said to have led to dismissal, but they did not themselves cause the claimed financial loss. The statutory unfair-dismissal remedy therefore governed the claim, regardless of whether the loss was described as stigma damages.
3. The claim for legal expenses also failed. The Employment Tribunal’s findings showed that the claimant’s admitted conduct contributed to the disciplinary process and dismissal. The employer was not obliged to pay for legal representation in the internal proceedings. The expenses incurred before the Employment Tribunal and Employment Appeal Tribunal arose from the dismissal, and a contractual claim could not be used to circumvent the applicable costs regime.
4. Had a well-founded cause of action been disclosed, it would have been distinct from the Employment Tribunal’s wrongful-dismissal claim, which concerned failure to give contractual notice. The High Court claim concerned alleged pre-dismissal disciplinary breaches and loss extending beyond the notice period.
5. Alternatively, bringing the High Court claim would not have been an abuse of process under Henderson v Henderson. The claimant could not have obtained full contractual relief in the Employment Tribunal because of the statutory damages limit, and bringing the claims separately would not, on these facts, misuse the court’s process.

Order: The claim was dismissed.

The Employment Tribunal found the claimant unfairly dismissed and awarded compensation, including damages for wrongful dismissal. The Ministry of Defence’s appeal to the Employment Appeal Tribunal was dismissed on 2 September 2008. The present High Court claim was then dismissed.