Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
The claimant was the respondent’s Chief Executive. Under his contract, it allowed for termination by three methods:
12 months’ written notice by either party;
Immediate termination by the employer with payment in lieu of notice; or
Summary dismissal on the basis of gross misconduct.
In 2017 the claimant attended an event where he assaulted a colleague. He subsequently stated that he was unable to perform his duties due to illness. The respondent dismissed the claimant on the grounds of gross misconduct.
The claimant brought a claim citing wrongful dismissal on the basis that the assault did not satisfy the criterion of ‘gross misconduct’. He claimed for 12 months’ salary as well as compensation for the loss of particular employment benefits under his contract.
At first instance, the claim was struck out. The Tribunal Judge citing Lavarack v Woods of Colchester [1967] stated that he had to follow the ‘least burdensome mode of performance’ rule which meant that when breach of contract was alleged the court had to determine loss on the basis of what the claimant would have gained from the defendant’s performance of the contractual obligations. On this basis, it was held that the second method noted above could have been used and it would have stopped the greater amounts claimed from actually being claimed.
The claimant appealed this decision to the Court of Appeal. The thrust of the appeal was that the least burdensome performance rule should no longer be followed as it went against the general nature of compensation in assessing damages for breach of contract. The Court of Appeal dismissed the appeal citing that the least burdensome performance rule was well-settled within the law. They noted that it was regularly applied in contract law generally such as that seen in commercial disputes but that it had been used in employment situations as held by the Supreme Court in Geys v Societe Generale [2012]. As a result, the rule had to continue to apply.
The claimant argued that the option cited by the Tribunal Judge (payment in lieu of notice) was not the least burdensome but ought to have been 12 months’ notice. He cited that he should have been able to go on sick leave for six months with an interim Chief Executive being appointed. The Court of Appeal found this to be implausible and that he had been unfit to carry on with his duties and he had assaulted a colleague in public. As a result, the appeal was dismissed.
Practical Lessons
This case demonstrates the use of normal contract law principles within an employment context. Whilst the employment contract is unique in ways (with it generally having no end-date and relating to a relationship of mutual trust and confidence) there are general contractual principles which allow for the issues to be dealt with. In this case, the least burdensome mode of performance rule was able to be applied to show how the claimant did not have a case considering the options that were available to the respondent in bringing the contract to an end. The nature of the contract and its terms should always be borne in mind when it comes to examining claims made for wrongful dismissal.
https://www.bailii.org/ew/cases/EWCA/Civ/2022/901.html
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