Employment Commentary - 1/6/09

Damages Available for Failure to Follow Contractual Disciplinary Procedure

This month, Edwards v Chesterfield Royal Hospital has been in the Court of Appeal and the Court held that a claim for damages was acceptable where that claim was based on the fact that the employer breached a contractual disciplinary procedure. In this case, a Doctor put forward the case that because the contractual disciplinary procedure was not followed, he was found guilty of misconduct and the finding led to his inability to find a permanent NHS position after his dismissal. He claimed the Trust had breached the contract and his career long loss would be in the region of £4m.

Before the case could be heard the Court had to decide whether or not it could hear a claim for damages arising from the employer's failure to follow a contractual disciplinary procedure. The Tribunal ruled that it could and this has been supported in the Court of Appeal. What was key in the Court of Appeal's decision was the question of whether or not a person could claim damages as a result of their loss of professional status. In this case the Court of Appeal ruled that an employee can claim damages in these circumstances. It is also a timely reminder to ensure that disciplinary procedures are not incorporated into the contract and therefore given contractual force. It is perfectly legitimate to have them referred to in the contract but held in a separate document which is stated to be non-contractual.