Employment Law – Unfair Dismissal – Breach of Contract


The recent case of Botham v Ministry of Defence [2010] involved a decision relating to unfair dismissal and to whether an employer had breached the terms of the relevant contract.

The employee in this case had been employed for approximately fifteen years by the employer. The employee held a position as a youth community worker at a number of military bases around Germany. His employment could be terminated on three months' notice.

On the 10th of December 2002, he was suspended from work. Subsequently, he was charged with gross misconduct on the 4th of June 2003. The allegations made against him included that he had behaved inappropriately in relation to two teenage girls. Furthermore, his behaviour in respect of young people in general gave cause for concern.

Following disciplinary proceedings, the employee was summarily dismissed for gross misconduct. His dismissal took effect on the 30th of September 2003. Furthermore, he was placed on the Department of Education and Skills’ list of individuals that are deemed unsuitable to work with children.

He then brought a claim for unfair and wrongful dismissal.

The tribunal held that the employee had been unfairly dismissed by the employer and that the summary dismissal to which he was subject was in breach of the terms of his employment contract. At the subsequent remedies hearing, the tribunal elected to make a compensatory award based on loss of earning and benefits from the date of expiry of the three months’ notice period up to the date of the remedies hearing.

The employee made a claim that the defendant was in breach of both express and implied terms of his employment contract. He stated that this led to his summary dismissal, and caused him loss of earnings and benefits extending beyond his contractual notice period. The amount that he claimed was that which was claimed in the unfair dismissal proceedings less the compensatory award that he had already received.

The claim was dismissed.

It was held that aside from suspension, an employer's failure to act fairly in the steps leading to dismissal did not of itself cause the employee in question any financial loss. The loss that was suffered arose upon the employee being dismissed.

Therefore the claim for damages in respect of loss of earnings was not an admissible cause of action.

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© RT COOPERS, 2010. 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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