Labour & European Law Review Weekly Issue 333 21 August 2013
Following the decision in Johnson v Unisys, employees cannot bring claims for damages for personal injury following dismissal if the dismissal breached the implied term of trust and confidence, unless the injury was unrelated to the dismissal. In Monk v Cann Hall Primary School, the Court of Appeal said that if the breach of the term of trust and confidence was “independent” of the dismissal, the person could still bring the claim.
Following a reorganisation at the school where she worked, Ms Monk was told in June 2008 that she would be made redundant with effect from 31 August. However, at a meeting of school governors on 9 July, it was decided that she should no longer be allowed access to the school and at 8.30 the next day she was escorted off the premises. Ms Monk brought claims for unfair dismissal and defamation in 2008 and 2009, both of which were settled.
She started proceedings against the Council for damages for psychiatric injury caused by the events of 10 July. The Council wrote to her on 21 October 2011 admitting liability but questioning causation and the amount of damages she was claiming.
The trial was due to start in October 2012, but after the Council became aware of the decision of the House of Lords in Johnson v Unisys, it asked the court to withdraw the admissions it had made in its earlier letter and also applied for an order striking out her claim.
High court decision
The High Court judge gave the Council permission to withdraw the admissions on the grounds that they had been made innocently and that the claim ought to be tried on the basis of the correct legal principles. In other words, the decision in Johnson v Unisys.
As Ms Monk had been dismissed on 10 July 2008 (according to her statement of case) her claim was related to the dismissal and fell within what has become known as the Johnson exclusion zone. He therefore ordered that it be struck out.
She sought to amend her statement of case so that the date of termination of her employment was 31 August and not 10 July 2008.
Court of Appeal decision
The Court of Appeal confirmed that only claims which are “independent of the dismissal” can be said to fall outside the Johnson exclusion area. Whether a claim for physical injury caused negligently in the course of escorting Ms Monk from the premises would be regarded as independent of the dismissal was therefore a good question.
Although it was not necessary for the court to reach a final decision on that point, Lord Justice Moore-Bick held that if her exclusion from school on 10 July constituted her dismissal (as she originally claimed), the way in which it happened was probably too closely related to the dismissal itself to escape the Johnson exclusion area, If, on the other hand, it was nothing more than an incident during the period of her employment which terminated on 31 August, it was difficult to see how it could have been so closely related to the dismissal to fall within it.
One of the other two judges went further, holding that even if her termination date was 10 July, there was a strong argument to suggest that the school’s conduct in “marching her off the premises” remained "independent" of her dismissal.
It overturned the High Court’s decision to strike out the claim and Ms Monks was allowed to amend her claim to argue that she was dismissed on 31 August.
This legally interesting, but practically frustrating, decision shows how sometimes it is necessary to shift position to avoid the restrictions of apparently unjust laws. It is also a good example of how litigation could have been avoided simply by treating an employee with the same dignity and respect which an employer expects to be shown to them.