Veitch Penny LLP - Exeter | Crediton, Devon

Case

Virgin Net Ltd v Harper
Employment Appeal Tribunal - (9th July 2003)

Issues

(1) Wrongful dismissal
(2) Unfair dismissal
(3) One years’ continuous service

Facts

On 4 April 2000, the Applicant, Harper, was employed by Virgin Net on a temporary contract. She became a permanent employee as of 1 November 2000. The terms of the contract stated that it could be terminated on three months notice given by either party. In the event of serious misconduct, the contract could be terminated without notice.

In January 2001, there was an incident between Harper and a junior manager. A disciplinary hearing was convened at which Harper was given a formal written warning for misconduct. She entered an appeal, but this was dismissed; the decision being confirmed within a letter to Harper dated 2 March 2001.

Later that day, Harper was given a second letter. Her employer had changed its mind and had decided to terminate her employment with immediate effect.

Harper commenced proceedings for wrongful dismissal. She could not claim unfair dismissal, as she did not have one year’s continuous employment.

The Tribunal upheld her claim for wrongful dismissal. It also found that, in line with the decision in Raspin –v- United News Shops Ltd [1999], Harper would also be awarded damages for being denied the chance to claim unfair dismissal. If Harper had been given three months notice as required by the contract, she would have been had one-years’ continuous employment needed to be able to claim unfair dismissal. (If the statutory notice alone had been added, Harper would still not have reached the necessary one years’ service.)

Virgin Net appealed. Could Harper recover damages for losing the chance to claim unfair dismissal, if, with the proper contractual notice, she would have been so entitled?

Decision

The Employment Appeal Tribunal allowed the appeal. The Tribunal’s decision to award more than three months’ net pay in lieu of notice was set aside.

The case of Addis –v- Gramophone co Ltd [1909] held that the manner of dismissal did not sound in damages. This judgement was upheld in the case of Johnson –v- Unisys [2001].

Harper’s claim was based upon her employers’ decision to dismiss her summarily. It was the fact of dismissal alone (which was certainly unfair) that had given rise to her claim for loss of the chance to claim unfair dismissal. If she had been given the correct notice from her employer a claim could have been made.

In this regard, it could be argued that Harper had a claim. In reality though, Harper had suffered no loss. She was simply unable to satisfy the one-year time limit at required by legislation.

Accordingly, the original tribunal had been wrong to follow Raspin so as to conclude that a head of damages was recoverable in the wrongful dismissal claim.

Comments

This decision confirms the position that an employee may not claim damages for being denied the opportunity to make a claim for unfair dismissal.

Parliament had decided that the statutory right not to be unfairly dismissed under the Employment Rights Act 1996 had to be subject to certain limitations. One of these was that the applicant had to have one years’ continuous employment. The end of a period of continuous employment was marked by the effective date of termination. Since the Employment Protection Act 1975 the effective date of termination was extended to include (in cases of summary dismissal) the length of statutory notice to which the employee was entitled. Parliament could have decided to allow this to be extended to include contractual notice (as in this case), but had chosen not to do so.