Monk v Cann Hall Primary School & Anor

The Johnson exclusion area bars a common-law claim for loss caused by dismissal itself, but leaves claims independent of dismissal available. The court must first determine when and how employment ended; removal during a notice period may be an incident of employment rather than dismissal. An arguable alternative case on that issue should not be struck out merely because it was not pleaded earlier, particularly where no abuse or material prejudice is shown. An unpleaded remoteness challenge requiring evidential assessment is also unsuitable for summary disposal.

The claimant was employed as an administrative assistant at a primary school. She received notice that her employment would end by redundancy on 31 August 2008, but was required to leave the premises on 10 July. She alleged that the manner of her exclusion caused psychiatric injury.

Her employment tribunal claims were compromised, expressly excluding a potential personal-injury claim. The High Court permitted the respondents to withdraw admissions and struck out the personal-injury claim after relying on the decision in Johnson v Unisys Ltd [2001] UKHL 13. The appeal concerned whether the claimant could amend her case to contend that her employment continued until 31 August, whether the claim was within the Johnson exclusion area, and whether it was abusive or too remote to proceed.

1. Appeal allowed. The claimant was given permission to amend her particulars of claim to contend that her employment ended on 31 August 2008.
2. The admission in the defence that reasonable care had not been exercised was an admission of fact, not necessarily an admission of a legal duty. Since the respondents did not intend to dispute the pleaded facts, withdrawing that admission was misconceived. Nevertheless, the judge’s decision to permit withdrawal was not challengeable because the claimant would suffer no significant prejudice that could not be compensated in costs.
3. The employment tribunal had no jurisdiction to determine a claim for damages for personal injury as such. The compromise agreement merely preserved the claimant’s potential personal-injury claim. It did not recognise that the claim had a good cause of action or restrict the defences available. In the absence of evidence of a common assumption that the claim was good, it was not unconscionable for the respondents to raise the Johnson point. The tribunal judgment created cause-of-action estoppel only in relation to the unfair and wrongful dismissal claims. It created no issue estoppel because no issue had been determined.
4. The decision in Addis v Gramophone Co. Ltd [1909] A.C. 488 limited damages in wrongful dismissal to the relevant contractual loss and did not prevent a separate recognised cause of action. Johnson v Unisys Ltd [2001] UKHL 13 established that the common law could not impose a duty of care to compensate for harm caused by unfair or wrongful dismissal itself. Part X of the Employment Rights Act 1996 occupied that territory, but claims independent of dismissal remained possible. The distinction in Eastwood v Magnox Electric Plc and McCabe v Cornwall County Council [2004] UKHL 35, and the explanation in Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58, were material.
5. The expiry of notice did not prevent summary dismissal during the notice period, but the true date and manner of termination required examination of the evidence. The claimant’s proposed amendment had a real prospect of success and was not an abuse of process. A remoteness argument requiring assessment of evidence, and not properly raised or argued, could not justify striking out the claim.
6. Lord Justice Underhill agreed with the result and added that, even if the conduct on 10 July constituted dismissal, a negligence claim might remain independent despite factual overlap. He expressed no concluded view.

• Court of Appeal (Civil Division): Appeal allowed. The claimant was permitted to amend her particulars of claim.
• High Court of Justice: The deputy judge permitted withdrawal of admissions and struck out the claim as incapable of succeeding in law.