Claim for Unfair Dismissal

Employment: Employee cannot Claim for Loss of Opportunity to Claim for Unfair Dismissal

The Court of Appeal in Harper v Virgin Net Ltd, decided that an employee bringing a claim for wrongful dismissal against a former employer could not claim for loss of opportunity to bring a claim for unfair dismissal.

In order for an employee to bring a claim for unfair dismissal, the employee has to be in continuous employment for at least one year. Prior to this Court of Appeal decision, where an employee's employment was marginally short of the one-year qualification to bring an unfair dismissal claim, it was possible for that employee to bring a claim for wrongful dismissal on the grounds that he had lost the opportunity to bring a claim for unfair dismissal. This situation arose where the employee was either (i) summarily dismissed (i.e. dismissed without any notice); or (ii) not given the contractual notice prior to dismissal; or (iii) his employer did not follow the contractual disciplinary procedures.

The Court of Appeal's ruling in Harper v Virgin Net Ltd, was based on the following grounds:

• Where an employer dismisses an employee without giving proper notice, it relates to the manner of dismissal, with such losses being irrevocable.
• The Applicant in this case had not completed one year's continuous employment and was therefore ineligible to bring an action for unfair dismissal, so in turn suffered no loss; and
• There is a policy issue that parliament has addressed, upon which the one-year continuous employment principle is based and the court did not wish to circumvent this policy.

© RT COOPERS, 2004. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.
 

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