Anthony v Dyson Ltd

An employee dismissed on contractual notice cannot recover contractual damages exceeding the notice entitlement merely because the employer allegedly failed to provide promised support or training before dismissal. A sufficiently clear contractual termination provision permits termination on its stated notice terms.

A claim for damages based on the manner or unfairness of dismissal is barred by the Johnson exclusion zone. A claim based instead on an earlier breach during employment must identify loss caused by that earlier breach independently of dismissal. Where all alleged loss arises only on dismissal, the claim has no reasonable prospect of success.

The Claimant was employed as a Dyson expert during a three-month probationary period. His contract provided for one week’s notice during probation, which the Respondent paid in lieu when dismissing him for failing probation.

He alleged that the Respondent had breached contractual promises to provide support and training. The London (East) Employment Tribunal struck out his breach of contract claim under Rule 37 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, holding that it had no reasonable prospect of success.

The Claimant appealed. The central issue was whether the alleged pre-dismissal failures could found recoverable contractual damages despite the contractual notice provision and the Johnson exclusion zone.

1. Appeal dismissed. The Employment Tribunal made no error of law in striking out the breach of contract claim as having no reasonable prospect of success.
2. The contract entitled the Respondent to terminate employment during probation on one week’s notice. The Claimant received payment for that period. Even if the Respondent had failed to provide promised support or training, no contractual term prevented it from exercising that termination right. The performance-management provisions also permitted dismissal as an outcome during probation.
3. Contractual damages would place the Claimant in the position he would have occupied had the contract been performed. On his original formulation, his claimed loss of earnings arose from dismissal. It could not exceed the one week’s notice pay already received.
4. To the extent that the claim sought damages for the unethical, unfair or improper manner of dismissal, it fell within the Johnson exclusion zone. Such a contractual claim cannot be used to recover for the manner of dismissal.
5. Alternatively, a complaint about an earlier breach of contractual duty during employment was not excluded merely because it preceded dismissal. But it could succeed only if it caused recoverable loss independent of dismissal. The Claimant identified no such loss; all loss arose when his employment ended.

Accordingly, however the claim was characterised, it could not succeed and was properly struck out under Rule 37.

• Employment Appeal Tribunal: appeal dismissed; the strike-out was upheld.
• London (East) Employment Tribunal: on 3 September 2018, Employment Judge Prichard struck out the Claimant’s breach of contract claim as having no reasonable prospect of success under Rule 37 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.