DISMISSED EMPLOYEES: THE SEARCH FOR A MORE EFFECTIVE RANGE OF REMEDIES
| Published date | 01 July 1989 |
| Author | Hazel Carty |
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02608.x |
| Date | 01 July 1989 |
THE
MODERN
LAW
REVIEW
Volume
52
July
1989
No.
4
DISMISSED EMPLOYEES: THE SEARCH FOR
A
MORE EFFECTIVE RANGE
OF
REMEDIES
IN
the last decade an interesting development in employment law has
been the attempt by dismissed employees to extend the range of rem-
edies available to them in the courts. Adequate safeguards against
arbitrary dismissals or dismissals in breach
of
procedure have been
sought. The aim
of
this article is to assess the reaction
of
the courts to
date, to discern any pattern that may be developing and to pinpoint
the difficulties and unresolved questions that remain. In order to do
this it will be necessary
to
outline the “classical” common law
pos-
ition on dismissal and the statutory claim for unfair dismissal.
THE TRADITIONAL
COMMON
LAW
APPROACH
Since the nineteenth century the theoretical legal model for the
employer-employee relationship has been the contract
of
employ-
ment: the so-called wage-work bargain. The contract model was
advantageous to the employer: employment as an economic
exchange required only minimal commitment from him. This mini-
mal commitment
is
most apparent in the right in the majority
of
cases
to dismiss arbitrarily: the common law implied limited notice obli-
gations and nothing more. In particular no procedural limitations
were imposed on the employer. Yet, at the same time the courts
acknowledged the fact that the contract of employment involved a
relationship
by continuing to imply terms such as the duty to take
care, to co-operate and to obey. These generalised implied terms
tended to favour managerial expectations. In essence, therefore, the
employer had the best of both worlds: the law might only imply a
minimal commitment from him but it required a wide notion
of
“fide-
lity” from his employees, a notion which survives the termination
of
the contract.’
Further, the
full
range
of
remedies, consequent upon a breach
of
contract, were denied to the parties to the contract
of
employment.
Although the courts have always been prepared to award injunctions
to restrain parties to the contract of employment breaching certain
obligations-in particular,
of
course, the duty
of
confidentiality and
See
Fox,
&!yolid
Conrrucf:
Trust,
Power
orid
Work
Relufions
(1976)
pp.
181-184.
449
450
THE MODERN LAW REVIEW
[Vol.
52
obligations contained in valid restrictive covenants-the courts have
refused to enforce the contract obligations to worWto employ. The
catch phrase has always been “no specific performance
of
the con-
tract
of
employment” and this embargo has also been applied to the
granting
of
injunctions, if they would have the effect
of
indirectly
enforcing the contract. The reasons given for this rule against specific
performance are diverse: enforced serfdom, lack
of
mutuality, diffi-
culty
of
supervision. But the notion
of
not forcing a relationship is
paramount. Thus, damages were all that the common law would offer
the unlawfully dismissed employee. Such damages would be limited
to the bare minimum
of
the employer’s duty,
i.e.,
the notice period
(the earliest date at which he could lawfully determine the contract)
and of course would be subject to the duty to mitigate.* In the major-
ity
of
cases, therefore, the common law failed to offer any real pro-
tection to the dismissed employee.
The absolute rule against specific performance has
of
course Ion
been the subject
of
criticism by commentators. In
Hiff
v.
Parsons
Lord Denning joined this criticism. There an interim injunction was
awarded, restraining the employer from treating inadequate notice as
having determined the contract. Lord Denning contended that the
rule against specific performance was not inflexible,
so
that in a
proper case the court could grant a declaration that the relationship
still subsisted and an injunction to stop the employer from treating
the contract as at an end. The lack
of
strong authority for this propo-
sition did not deter Lord Denning: the need to bring the law into
accord with the needs
of
today was his justification.
Of
particular
importance in this case was the continued confidence between
employer and employee: it was the trade union that had brought
pressure
to
bear to dismiss. However the immediate reaction to
Hill
v.
Parsons
was unfavourable: in effect it was dismissed as “unusual if
not unique” by Sir John Donaldson in
Sanders
v.
Ernest
A.
Neafe
Ltd.4
In view
of
recent developments it is important, however to
underline the fact that other judges had been willing to question the
strict rule: Megarry
J
obiter dicta
in
C.
H. Gifes
&
Co.
Ltd.
v.
Morris’
accepted:
“
.
.
.
that it should [not] be assumed that as soon as any
element
of
personal service or continuous service can be discerned in
a contract the court will, without more, refuse specific performance”6
and his comments were approved by Goff L.J. in
Price
v.
Strange.’
Despite these rare questionings
of
the rule against specific perfor-
mance, in real terms litigation would not be seen as an effective or
9
~ ~~
Nor
are damages awarded
for
distress/annoyance, see
Bliss
v. S.E.
T/iames
[1974] 3
All E.R.
327.
Even Lord Denning in
Chappell
v.
Times
Newspapers
[1975]
Re
ional
Health Aufhority
[1985]
I.R.L.R.
308,
C.A.
‘Hi“
v.
Parsoris
(C.A.)
&
Co.
Ltd.
I19721 1
Ch.
305.
’
[1972] 1
W.L.R.
307.
’
[1978]
Ch.
337,359.
I.C.R.
145
stated that
Hill
v.
Parsons
was exceptional.
Ibid.,
318.
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