Dunnachie, Eastwood and McCabe: Dismissal, injury and the death of Johnson
Dunnachie, Eastwood and McCabe: Dismissal, injury and the death of Johnson
In judgments in two appeals Dunnachie v. Kingston upon Hull County Council and the joined appeals of Eastwood v. Magnox Electric Plc and McCabe v. Cornwall County Council the House of Lords considered the scope of compensation for unfair dismissal in the Employment Tribunals and the interaction of the common law and the statutory claim for unfair dismissal where an employee has suffered psychiatric injury.
In Dunnachie, a judgment notable for its relative brevity and lack of any substantive comment from Lord Hoffmann, the House of Lords ruled out the possibility of Employment Tribunals making any award of damages for injury to feelings or psychiatric damage arising from the dismissal of an employee.
In a speech approved by the other members of the Appellate Committee Lord Steyn concluded that “I would hold that section 123(1) [of the Employment Rights Act 1996] does not allow for the recovery of non-pecuniary loss”.
A hare which had been set running by Lord Hoffmann in Johnson v. Unisys [2003] 1 AC 518 was thus brought to an abrupt halt. The powers of Employment Tribunals are not to extend to making general damages awards in unfair dismissal cases whether for injury to feelings or for psychiatric damage.
Little surprise will be expressed at a decision which prevents Tribunals making awards for injury to feelings in any successful unfair dismissal claim, but where does that leave an employee whose employer has treated him in such a way, culminating in dismissing him, that the employee suffers psychiatric injury? That was a question the same Appellate Committee had to confront in the Eastwood.
Johnson v. Unisys appeared to confirm that an employee could not succeed in obtaining damages at common law in the County Court and High Court for psychiatric injuries caused by his dismissal or the manner of his dismissal. Lord Hoffmann had asserted that the remedy in those cases lay in the Employment Tribunal but Dunnachie had just disposed of that argument. Interestingly in Johnson Lord Steyn (then in the minority and disagreeing with Lord Hoffmann) suggested that in principle there was no reason why such a claim could not succeed at common law subject to usual arguments about remoteness of damage. However the majority of the House of Lords ruled out any such claim in that case.
In Eastwood the House of Lords had cause to reconsider this aspect of the decision in Johnson. In both cases it was alleged that the Claimants had suffered psychiatric injuries caused by the actions of their employers which actions culminated in the dismissal of the Claimants in each case. The Claimants pursued claims for personal injury in the County Courts. In both cases it was argued by the Defendants that the Claimants had no cause of action as their claims were for damages arising from the dismissal or the manner of the dismissal and therefore, following Johnson, the only claims they had available were for unfair dismissal (the Claimants having already pursued those actions). In the Court of Appeal the claim in McCabe had been allowed to continue and the claims in Eastwood had been dismissed.
The House of Lords, dismissing the appeal in McCabe and allowing the appeal in Eastwood, allowed the claims to continue. Johnson was distinguished. A Claimant who suffers psychiatric injury can bring a claim for any injury caused by his “pre-dismissal unfair treatment” subject to the usual considerations when establishing a cause of action.
As Lord Nicholls recognised when giving the leading speech in Eastwood: “identifying the boundary between the common law rights and remedies and the statutory rights and remedies is comparatively straightforward, the same cannot be said of the practical consequences of this unusual boundary”.
We are left with the situation that when assessing a claim for psychiatric injury to an employee everything but the dismissal can be taken into account, a position which is only likely to benefit the lawyers and psychiatrists in erudite arguments about the causation of injuries which bear little relationship to the reality of the employment situation.As Lord Nicholls recognised “[t]his situation merits urgent attention by the government and the legislature”.
Lord Steyn who could be forgiven for saying “I told you so” issued a clear invitation for someone to challenge the correctness of the decision in Johnson although the invitation was somewhat tempered by the suggestion that “[a] re-examination by Parliament is needed”.
In practice the problem may not be so great. In most actionable psychiatric injury cases there is likely to be sufficient “unfair treatment” apart from the dismissal itself to give rise to some psychiatric injury in the individual concerned. One would suspect that judges may be prepared to consider cases in such a way as to render the ‘Johnson exclusion area’ a relatively small and sparsely inhabited island.
In those cases where it matters the invitation from Lord Steyn is there for those who are willing to make the trek to the House of Lords. In the absence of such intrepid travellers we must hope that on this occasion the legislature does act to return the power to properly consider all claims for damages for psychiatric injury to the Courts where they belong. The final death of Johnson cannot come too soon.