Unfair dismissal “Johnson” exclusion area

Unfair Dismissal “Johnson” Exclusion area.

Can a Gibraltar employee bring a claim for breach of the employment contract due to the manner of their dismissal?

Chris Brunt is a Gibraltar employment lawyer, a Barrister and Acting Solicitor who will consider all unfair dismissal cases on a “no win no fee” basis”.

Can a dismissed employee bring a claim for breach of the employment contract if linked to the dismi

The House of Lords in Johnson v Unisys Ltd [2001] UKHL 13, and Eastwood v Magnox Electric plc [2004] UKHL 35 decided that an employee should not be able to bypass ‘unfair dismissal’ legislation in order to bring a claim at common law for damages where it was alleged that a dismissal breached the implied term of mutual trust and confidence. Such a claim falls within what has become known as the “Johnson exclusion area“, to be decided in the employment tribunals and not in the courts.

Further, the decision in Edwards v Chesterfield Royal Hospital NHS Foundation Trust & Botham v Ministry of Defence [2011] UKSC 58, extends the Johnson exclusion area to situations in which the breach relied upon is of the contractual disciplinary procedure. This means that ‘Johnson’ extends beyond the implied term of trust and confidence to express contractual terms too.

The ‘Johnson’ exclusion area includes express terms which encompass the fact of a dismissal.

The reasoning of the court in Johnson and Eastwood was that to allow an employee who has been dismissed to bring a claim for breach of contract based upon a failure to follow contractual disciplinary procedures would be to undermine the statutory unfair dismissal regime. Parliament cannot be taken to have intended that such a failure, where it led to dismissal, would give rise to a common law claim for damages. However, this does not mean that a breach of an express term cannot sound in contract. For example, a claim for an injunction during the disciplinary process (which would be heard in the Supreme Court of Gibraltar).

All claims for unfair dismissal in Gibraltar, therefore, are likewise not founded in breaches of the employment contract by the employer but are subject to the ‘unfair dismissal regime’ which is founded in Gibraltar legislation, that is sections 59-65 of Gibraltar’s Employment Act.

While the decisions in Johnson and Eastwood are decisions of the UK courts they are case or common law in Gibraltar. Both the Gibraltar Supreme Court and the Gibraltar Employment Tribunal are bound by their decisions.

Look out for my post on a recent Gibraltar Supreme Court decision that involved the Johnson exclusion principle. Dr Helena Cilliers v Gibraltar Health Authority 2021/GSC/19

Latest: May 2022, the Court of Appeal for Gibraltar gives its decision on Dr Cilliers v GHA (above) which was appealed from the Supreme Court. (Interesting point on employment contracts which allow dismissal for and without cause.)

Chris is an Employment Law Barrister and Acting Solicitor of the Supreme Court of Gibraltar who specialises in employment law.

Are you an employer who requires advice on reducing your business’s exposure to an unfair dismissal claim?

Or are you an employee who is facing a disciplinary meeting or who has been dismissed?

Contact me for a free 30-minute consultation at Phillips Barristers & Solicitors, 292 Main Street, Gibraltar, GX11 1AA, call me on 200 73900 or email me at chris.brunt@phillips.gi for advice to employers on reducing your businesses exposure to an unfair dismissal claim – Or, if you are an employee, to evaluate your prospects for a claim for unfair dismissal.

All employee cases are considered on a “no win no fee” basis

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