Johnson v Unisys Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date04 Dec 1998
Judgment citation (vLex)[1998] EWCA Civ J1204-12
Docket NumberCCRT1 98/0998/2

[1998] EWCA Civ J1204-12





Royal Courts of Justice


London WC2


The Master of the Rolls (Lord Woolf)

Lord Justice Hutchison

Lord Justice Tuckey

CCRT1 98/0998/2

Fenton Barry Johnson
Unisys Limited

LORD MESTON QC and MR O WISE (Instructed by Foinette Quinn, Milton Keynes, MU2 2DM) appeared on behalf of the Appellant.

MR P ELIAS QC and MR S NEAMAN (Instructed by Messrs Davies Lavery, London, EC3R 7HN) appeared on behalf of the Respondent.


Friday 4 December 1998


The Background


This appeal is from a decision of His Honour Judge Ansell made on 26 June 1998. The judge struck out claim of the plaintiff, Mr Johnson, for substantial damages against the defendants, Unisys Limited, his former employers.


In outline the plaintiff's claim is that because of the manner in which he was dismissed he suffered a mental breakdown and since that time he has been unable to work with the result that he has and will suffer loss of earnings amounting to in excess of £400,000.


As this is a "striking out" case, the appeal has to be determined on the assumption that the facts set out in the plaintiff's claim are true. At the hearing of the appeal it was accepted by Lord Meston QC (who had not appeared in the court below) on behalf of the plaintiff that the amended particulars of claim required amending. In these circumstances this court gave the plaintiff a further opportunity to revise his pleading. This has now been done and in this judgment, I will assume that if the appeal is successful the plaintiff would obtain leave to re-amend his particulars of claim in accordance with the draft which is before us. It is right, however, to point out that if necessary, the defendant will seek to rely on a limitation defence, the merits of which this court has not considered.


The Plaintiff's Case


The facts as indicated in the re-amended particulars of claim can be summarised as follows; the plaintiff was initially employed by the defendant between 1971 and 1987. During this period, because of his employment, the plaintiff was subject to considerable stress. In particular, in 1985, during a posting to Paris and while working on a conference in Barcelona the plaintiff suffered from extreme stress and was at risk of sustaining psychological injury. At the end of 1985 the plaintiff was prescribed anti-depressants by his general practitioner. In addition his general practitioner wrote to the defendants and made a request that the plaintiff should be given time off work because of work-related stress. As a result of a meeting with the plaintiff prior to his returning to work in 1986 the defendants' doctor was aware of the plaintiff's psychological condition. In 1987 the defendants offered the plaintiff one to one counselling because of his medical condition and impending redundancy. At that time the defendants were therefore well aware of the plaintiff's special psychological needs.


In 1990 the plaintiff was re-employed by the defendant's as a manager and he remained in that position until he was dismissed on 20 January 1994.


The defendants, in a letter dated 10 January 1994, made allegations against the plaintiff regarding his conduct. The letter indicated that the complaints which were made against the plaintiff "were not of an individual nature" but involved other employees. On 17 January 1994 an investigatory meeting was conducted by the defendants which the plaintiff attended. The specific allegations were not put to him at this meeting. Later the same day the plaintiff was summarily dismissed. It is alleged:

"at no point was the plaintiff given an opportunity to defend himself or provide a full explanation of any allegations made. The decision to dismiss the plaintiff was confirmed by letter dated 19 January from the defendant to the plaintiff."


The plaintiff appealed by letter dated 26 January 1994. "The appeal did not take the form of a re-hearing and there was no investigation into the contents of the plaintiff's letter". This was a breach of the plaintiff's disciplinary procedures. The decision to dismiss the plaintiff was confirmed on this appeal.


The plaintiff complained to an Industrial Tribunal that he had been unfairly dismissed and on 20 February 1995, his complaint was upheld. However he was held to have contributed to his dismissal (25%).


The re-amended particulars allege that it was an implied term of the plaintiff's contract of employment with the defendant that "the defendant, its servants or agents would not, without reasonable and proper cause, conduct themselves":

"(a) In a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between the plaintiff and the defendant, its servants or agents;

(b) Would not, without reasonable and proper cause, conduct themselves in an unacceptable manner so as to harm the professional development of the plaintiff.

(c) Would not, without reasonable and proper cause, conduct themselves in an unacceptable manner so as to harm the physical or psychological health of the plaintiff or his financial welfare.

(d) The defendants would operate its established disciplinary procedures in accordance with its own written rules and the rules of natural justice and would take reasonable care not to harm the plaintiff's future employment prospects by harsh or oppressive behaviour or by any other unacceptable conduct."


The re-amended pleading goes on to allege that the defendant, its servants or agents, were in breach of the above implied terms in that they failed:

"(i)to put allegations to the plaintiff.

(ii)to accord the plaintiff an opportunity to defend himself.

(iii) to provide a full explanation of allegations against the plaintiff.

(iv) to comply with the defendant's disciplinary procedures and the rules of natural justice.

It is also alleged that the as a result of the matters to which I have already referred the defendant, its servants or agents knew or ought to have known that "the plaintiff was psychologically vulnerable and would suffer injury, loss and damage if the defendant, its servants or agents conducted themselves" in the manner alleged."


It is then said that as a result of these breaches of contract and/or negligence, the plaintiff sustained personal injury and suffered loss and damage.


The pleading contains particulars of injury which set out details of the plaintiff's treatment both as an in and out patient. It is alleged that he was unable to secure a job and developed a drink problem. It is also set out that in June 1996 he was admitted to hospital "having taken an overdose".


The court is asked to exercise its discretion in the plaintiff's favour under section 33 of the Limitation Act 1980 so as to disapply section 11 of that Act.


The Industrial Tribunal to which the plaintiff made his claim for unfair dismissal made an award in the plaintiff's favour of the maximum sum which could be awarded which was £11,000.


The Defendants' Case


Both in the County Court and in this court, the defendants accept that they owed a duty of trust and confidence to the plaintiff. However the other implied terms relied on by the plaintiff are said by Mr Patrick Elias QC to be "hopelessly vague and impossibly wide". It is contended that, if upheld, they would result in astonishing consequences.


It is disputed that there is an implied duty not to dismiss an employee unfairly. Such a term, it is said, would be inconsistent with a statutory provision requiring a claim of unfair dismissal to be made by way of complaint to a Tribunal "and not otherwise" (Employment Rights Act 1996 section 205).


The judgment in the County Court


His Honour Judge Ansell confesses that he had some difficulty with the speech of Lord Nicholls of Birkenhead in Malik v Bank of Credit and Commerce International SA [1998] AC 20. (A case to which I will come later.) However, he decided that an unfair dismissal could not amount to a breach of the implied trust and confidence; that there were no other implied duties; and that Lord Nicholls did not intend his comments in the Malik case to be taken as "effectively circumventing the whole statutory framework of unfair dismissal". He considered that the plaintiff was seeking to "open up a tremendous minefield of problems which at present is restricted … to the special statutory framework and the considerable case law that has flowed from it". The judge did however grant the plaintiff leave to appeal.


The Reasons for Dismissing the Appeal


I am in agreement with the views expressed by the judge for reasons which I will now seek to explain. The starting point as Lord Meston in his helpful submissions accepted, must be the case of Addis v Gramophone Company Limited [1909] AC 488. That case has been a cornerstone of the law of master and servant on which the statutory framework of the Industrial Tribunals jurisdiction in relation to unfair dismissal has been built. It is a decision which the House of Lords could over-rule but I would only expect them to do so by using the clearest language to indicate that this was their intention. Parliament when legislating in this field appears to have been acting on the assumption that the legal position was as is stated in Addis. It is a case which has been repeatedly followed (see for example Lord Justice Browne Wilkinson's judgment in O'Laoire v Jackel International Limited(No. 2) [1991] 1 ICR 718).


Addis concerned a claim by a former employee who could be dismissed by six months...

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