Employee dismissed without notice before expiry of one-year qualifying period for claiming unfair dismissal - entitlement to claim unfair dismissal would have arisen had contractual period of notice been given - no entitlement on wrongful dismissal claim to award for lost opportunity of claiming unfair dismissal and effective date of termination not postponed to expiry of contractual notice period

Harper v Virgin Net Ltd: CA (Lords Justice Brooke, Chadwick and Scott Baker): 10 March 2004

The employee was dismissed without the statutory seven days' notice.

Even if the seven days were added she would not have completed the one year of service required before she could claim unfair dismissal, although, if she were found to have been entitled to her contractual period of three months' notice and that period were added, the one-year condition would have been satisfied.

She brought a claim for wrongful dismissal.

An employment tribunal, finding that she would have succeeded in a claim for unfair dismissal had she been entitled to bring it, included in her award of damages a sum representing her lost opportunity of claiming unfair dismissal.

The Employment Appeal Tribunal allowed the employer's appeal, holding that the tribunal had not been entitled to award such a sum.

The employee appealed on the grounds that the effective date of termination for unfair dismissal purposes should be postponed to the later of the dates of expiry of the contractual and statutory notice periods.

Sinclair Cramsie (instructed by Rhodes Lewis, Bicester) for the employee; Jane McCafferty (instructed by Harbottle & Lewis) for the employer.

Held, dismissing the appeal, that the creation of the statutory right to claim unfair dismissal had made development of the common law in the manner suggested both unnecessary and undesirable; that had Parliament intended that result it would have legislated to that effect; and that, accordingly, the effective date of termination had been seven days after dismissal and the employee was not entitled to claim unfair dismissal and was not entitled to an award for the loss of the opportunity to bring such a claim.

Contract of employment - implied term - employer having no general duty to take reasonable care for economic well-being of employee

Crossley v Faithful & Gould Holdings Ltd: CA (Sir Andrew Morritt Vice-Chancellor, Lords Justice Dyson and Thomas): 16 March 2004

The employee, on medical advice, wrote a resignation letter, the effect of which was that he ceased to be entitled to benefits under the terms of his employer's insurance scheme as of right, and became instead entitled to receive discretionary benefits.

In the exercise of its discretion the insurer paid benefits for a year, but not thereafter.

The employee brought an action for breach of contract, complaining that the employer had asked him to submit a resignation letter knowing that he was applying for benefits under the scheme and that resignation would seriously prejudice his entitlement to such benefits.

The judge dismissed the claim.

The employee appealed.

Antony White QC (instructed by Ford & Warren, Leeds) for the employee; John Cavanagh QC and Daniel Oudkerk (instructed by Clyde & Co, Guildford) for the employer.

Held, dismissing the appeal, that although there were certain restricted circumstances where the court would imply a term the effect of which was to impose on the employer a duty which affected the employee's economic interests, there was no general duty on an employer to take reasonable care for the economic well-being of an employee; that the existence and scope of standardised implied terms raised questions of reasonableness, fairness and the balancing of competing policy considerations; that such an implied term would impose an unfair and unreasonable burden on employers; that the financial well-being of the employee might be in conflict with that of the employer; and that, in the circumstances of the instant case, the judge had been right to reject the claim.