Parris v Ajayi & Ors

On an interlocutory application, a claim arising from an employment dismissal may be within the Johnson exclusion area even where it is framed in libel or malicious falsehood and brought against an individual co-worker and companies other than the employer. Loss arising when, and by reason of, dismissal must ordinarily be pursued through the statutory unfair-dismissal regime. A distinct cause of action completed before dismissal, causing loss independently of dismissal, remains outside that area.

The Friend principle may provide a defence of consent or leave and licence to publication made within an employee’s disciplinary process. Its application depends on the facts, including when the process began and whether the employee unequivocally consented. Those issues were unsuitable for summary determination here.

The claimant brought libel and malicious-falsehood claims concerning a statement by the first defendant alleging that she had covertly recorded a workplace meeting. She alleged that the statement led to disciplinary proceedings, her dismissal for gross misconduct, reputational harm and financial loss.

The defendants applied to amend their defence and sought strike-out or summary judgment based on consent or leave and licence, the Johnson exclusion principle, alleged double recovery and abuse of process. They also challenged the claim concerning the employment reference. The claimant had obtained compensation for unfair and wrongful dismissal in Employment Tribunal proceedings. The central issues were whether the proposed defences should be admitted, whether losses pleaded arose from dismissal, and whether any surviving defamation claim should proceed.

1. Amendment and Henderson. The defendants’ points could and should have been raised earlier, but refusing permission would be disproportionate. There had been no material change of circumstances or newly discovered facts, yet the proposed issues had a real prospect of success and could properly be determined at trial. Permission to amend was therefore granted.
2. Consent and disciplinary publication. Friend supports the proposition that an employee who unequivocally assents to a disciplinary process may consent to republication of an accusation for the purposes of investigation and adjudication. The present case differed factually because the disciplinary procedure was described as non-contractual, the statement may have initiated the process, and malice was alleged. The timing of publication and commencement of the disciplinary process, the employment structure and the scope of consent required factual investigation. The defence could not be summarily determined.
3. Johnson exclusion area. Loss arising when an employee is dismissed and by reason of dismissal falls within the statutory unfair-dismissal regime. The principle applies whether the claim is framed in contract or tort and whether it is brought against the employer, an individual or another company in the group. A pre-dismissal cause of action remains available only where it caused loss independently of the dismissal. The pleaded claims for loss, dismissal-related reputational harm, employment handicap, reference-related loss and future earnings were consequences of dismissal and were struck out.
4. Employment reference. If the reference claim had survived the Johnson ruling, factual issues concerning an alleged clinical reference and labour-market handicap would have prevented summary judgment. The claim was not defeated merely because the claimant obtained later employment or because double recovery was impermissible.
5. Jameel and serious harm. The court had misgivings about proportionality, but could not conclude before disclosure and cross-examination that any surviving publication claim was abusive or incapable of establishing serious harm. The remainder of the strike-out and summary-judgment application was dismissed.
6. The defendants were granted permission to amend. Paragraphs 20(b), 27, 29.2, 29.3, 29.5, 29.6 and 30–30.10 of the Particulars of Claim were struck out. The remaining application was dismissed.