Unfair dismissal - compensation for injured feelings - employment tribunal having jurisdiction to award

Dunnachie v Kingston upon Hull City Council: CA (Lords Justice Brooke and Sedley and Mr Justice Evens-Lombe): 11 February 2004

The claimant was unfairly dismissed by the council.

An employment tribunal included in its award of compensation, under section 123 of the Employment Rights Act 1996, 10,000 for injury to his feelings on the basis that the meaning and effect of Lord Hoffmann's opinion in Johnson v Unisys Ltd [2003] 1 AC 518 was that employment tribunals could award compensation for non-economic loss and it was thus open to the tribunal to award compensation for injury to a claimant's feelings caused by the manner of his dismissal.

The Employment Appeal Tribunal held that the employment tribunal had no jurisdiction to make such an award.

The claimant appealed.

Antony White QC and Tom Linden (instructed by Unison Employment Rights Unit) for the claimant; John Bowers QC and Joanna Heal (instructed by Solicitor, Kingston upon Hull City Council, Hull) for the council.

Held, allowing the appeal (Lord Justice Brooke dissenting), that Lord Hoffmann's remarks in the Johnson case were not merely a judicial aside but an essential step in the reasoning leading to his conclusion in the case, giving them the force of binding authority in the Court of Appeal; that their inexorable effect, although it was not expressly said, was that Norton Tool Co Ltd v Tewson [1972] ICR 501 was not good law; that the tribunal was entitled to award compensation for the distress caused to the claimant; and that, in any event, effect could only be given to the requirement in section 123 of the 1996 Act that compensation should be just and equitable if non-economic loss might be included in an award of compensation, and to the extent that the Norton Tool case held otherwise, it was wrong.