Title: Liability and Remedies for Breach of the Contract of Employment at Common Law: Some Recent Developments
Abstract: Shorn of clear signposting, the exact line demarcating the boundary between the liability and remedial dimensions of a judicially resolved dispute may become so blurred that where the former ends and the latter begins can be extremely difficult to pinpoint. In many cases, the location of this separation point is irrelevant since the partitioning out of these two closely interdependent elements is entirely inconsequential. But in others, their unravelling is crucial in order to establish doctrinal clarity, and none more so in the case of the law of wrongful dismissal. Here, decisions of the House of Lords such as Johnson v Unisys Ltd , 1 and Eastwood v Magnox Electric plc2 and the Supreme Court in Edwards v Chesterfield Royal Hospital NHS Foundation Trust3 have brought issues of this kind to the forefront. Each rooted in the law of wrongful dismissal, it would be misconceived to characterise these decisions as having simply established a rule of law that denies employer liability for breaches of the implied and express terms of the contract of employment in the context of an employee’s dismissal. It is argued in this note that the broader significance of these and subsequent decisions lies in what they reveal about the mounting incoherence of the common law of the contract of employment as regards wrongful termination and its consequences, as well as its capacity to generate feedback loops 4 between these liability and remedial dimensions.