DISMISSAL AT COMMON LAW: THE RELEVANCE IN BRITAIN OF AMERICAN DEVELOPMENTS

DOIhttp://doi.org/10.1111/j.1468-2230.1989.tb02594.x
Published date01 January 1989
Date01 January 1989
AuthorGwyneth Pitt
DISMISSAL AT COMMON LAW: THE
RELEVANCE IN BRITAIN
OF
AMERICAN
DEVELOPMENTS
SEVENTEEN
years have passed since the action for unfair dismissal
was introduced into British labour law. Lately commentators have
become pessimistic about the effectiveness
of
that action in terms
of
coverage, implementation and remedies.’ The orthodox view
used to be that the common law was barely relevant in relation to
dismissal except for a lucky few employed under lucractive and
lengthy fixed term contracts, or those in public employment able to
invoke a wider range
of
remedies than the straightforward damages
claim.’ However, recently a number
of
decisions have indicated a
new vitality in common law claims. One strand
of
this development
has been the attempt to argue for public law remedies to be
extended to a broader category
of
employees, either by a wide
interpretation
of
the concept
of
a “statutory underpinning”
of
the
contract
of
employment or by a liberal construction
of
who
constitutes an office-holder entitled to natural justice before
terminati~n.~ The purpose
of
this article is to examine alternative
lines
of
development based on common law, which would therefore
be potentially available to
all
employees even if their contracts
of
employment fall entirely within the realm
of
private law. These
lines
of
development are suggested by trends in the United States
where, in the absence
of
a general legislative scheme protecting
employees from unjust dismissals, there has also been a recent
surge in successful common law actions challenging dismissals.
While unionised employees in the United States are protected
from arbitrary dismissal by the terms of collective agreements and
most federal
or
state employees receive legislative protection, these
groups account for only about
40
per cent. of all employees. That
leaves some
60
million workers whose employment is prima facie
regarded as being as “at will,” meaning that they can be dismissed
at any time for any rea~on.~ In effect, this is like the common law
position for contracts
of
employment in Britain, save that in the
United States there is not even a requirement
of
reasonable notice
to terminate. This is
so
harsh a rule that it is not surprising to find
that it has come under attack. American courts have developed
limitations via tort as well as contract law, and also on grounds
of
Anderman,
The
Law
of
Unfair Dbmbsaf
(2nd ed., 1985) p.317ff.; Davies and
Freedland,
Labour Law Text and Materials
(2nd ed., 1984) pp.428-432.
Smith and Wood,
Industrial Law
(3rd ed., 1986), pp.199-202;
cf.
Ewing and Grubb
(1987) 16
I.L.J.
145.
The genesis of the employment at will doctrine, replacing the old presumption
of
yearly hiring,
is
to
be found in
H.
G. Wood’s
Treatise on
the
Law of Master and Servant
(1877), s.134 p.272.
See Ewing and Grubb,
supra,
n.2.
22
JAN.
19891
DISMISSAL AT COMMON LAW
23
“public policy,” which is sometimes regarded as a contract and
sometimes as
a
tort action.
The strategy adopted in the American assaults on the employment
at will doctrine is to argue in effect that the contract
of
employment
is not really “at will,” but that the employer’s power to dismiss is
subject to fetters either inherent in the contract itself or imposed
by duties arising from the law of tort or by the demands of public
policy. These arguments could be adapted in a British context to
restrain the employer’s general rights in ordinary contracts
of
employment to determine the contract by giving notice. The
argument must be that in some circumstances, the employer is not
entitled to give notice. This could lead to the employee being
granted a declaration that the contract has not been terminated,
and/or an injunction; or it might found an action for compensation
beyond the amount represented by pay for the notice period.
Problems in regard to such claims will be examined later.
CLAIMS
BASED
ON
CONTRACT
Restraints on the employer’s general power to dismiss may be
construed from the contract of employment itself. Such restraints
may be classified into three categories: first, where a procedure for
termination is expressly provided for in the contract; secondly
where the contract expressly limits the substantive grounds on
which the contract may be terminated, and thirdly where procedural
or substantive limitations on the power to dismiss are implied
terms of the contract.
In relation
to
contracts containing an express procedure for
termination, it has come to be recognised in Britain that this is an
effective restraint on the employer’s power to dismiss.’ Two
decisions of the Court of Appeal in 1980 were most important in
establishing this. In
Jones
v.
Lee6
an interlocutory injunction was
granted to prevent dismissal of a headmaster in breach of the
contractual procedure. In
Gunton
v.
Richmond Borough Council
the registrar of a college dismissed in breach of procedure was
granted a declaration that the purported dismissal was ineffective
and awarded increased damages to reflect the salary he would have
received during the time it would have taken
to
operate the
disciplinary procedure.’ It was argued for the defendant that to
interpret the disciplinary procedure as restraining the power to
dismiss would be inconsistent with another term in the contract
allowing termination by either party on giving a month’s notice.
Jones
v.
Lee
[1980] I.C.R. 310;
Gunton
v.
Richmond
Borough
Council
[1980] I.C.R.
155;
R.
v.
BBC,
ex
p. Lavelle
(19831 I.C.R. 99;
Irani
v.
Southampton
&
SW
Hanu Health
Authority
[1985] I.C.R.
590;
Dietman
v.
London
Borough
of
Bretir
[1988] I.R.L.R. 299;
Ali
v.
London Borough
of
Southwark
[1988] I.R.L.R. 100.
[1980] I.C.R. 310.
The decision was based entirely on contractual grounds, not on
an statutory provisions relating
to
the employment of teachers.
I19801 I.C.R.
755.
By the time
of
the trial the plaintiff had accepted the breach,
so
no question of injunctive relief arose.

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