The case, Christopher Dunnachie v Kingston Upon Hull City Council concerned an environmental health officer, who worked for Hull city council for 15 years. Mr Dunnachie resigned in March 2001 following, according to the Court of Appeal, “a prolonged campaign of harassment and undermining” by a colleague and sometime line manager. The treatment contributed to his poor health but he stayed in the job until he could find another position with less pay, further away, and of lower status. Mr Dunnachie then claimed unfair dismissal and won a £10,000 employment tribunal award. The Employment Appeal Tribunal struck out the award, on the grounds that compensation in unfair dismissal cases embraced only ‘quantified pecuniary losses’.
The Court of Appeal, however, re-instated the award. In the words of Brooke LJ, “the award of £10,000 by the employment tribunal was not manifestly too high. They were in a very good position to judge the gravity of the respondent council’s conduct and the effect that it had had on Mr Dunnachie, a grown man of 34. At one time Mr Dunnachie was in such distress at his employers’ unfeeling conduct that he was reduced to crouching with his hands around his head on the floor in the office of the council’s Chief Public Protection Officer shouting “No!”.
“This is a momentous victory which will have widespread implications for other cases of unfair dismissal. It is also a significant legal move which will make the law on unfair dismissal much fairer,” noted UNISON general secretary Dave Prentis. The union backed Mr Dunnachie’s appeal.
The case will have a significant impact on unfair dismissal claims, according to John Clinch, the legal officer at Unison and a member of the national management committee of the Employment Lawyers Association. “The ruling will mean that every time someone has been bullied in similar circumstances – in other words, they have been bullied out of their job – then as a lawyer you would probably be negligent not to claim damages for distress, humiliation and loss of reputation,” he said. “Potentially, it does open up the floodgates to anybody who is dismissed by a disreputable employer in this way.” The solicitor made the point that the bullying suffered by Mr Dunnachie was severe. However, he added that the full impact of the case would depend on the outcome of the forthcoming appeal to the Law Lords and “how widely the lordships delineate the ambit of the case, if they do at all”.
Giving judgment, Lord Justice Sedley referred back to the “unquestioned orthodoxy” of Norton Tool Co Ltd v Tewson which set down that compensation for unfair dismissal covered only quantifiable pecuniary losses. That view was challenged by the House of Lords ruling in Johnson v Unisys Ltd which ruled that the statutory formula was wide enough to embrace damages for non-economic harm in unfair dismissal cases. Lord Justice Sedley referred to one commentator who remarked that Johnson could mean that “a phoenix of truly just and equitable compensation might now rise from the ashes of the hoped-for evolution of the common law of wrongful dismissal”. “This appeal is about the phoenix,” he said. “If the EAT is right and Norton Tool remains good law, the phoenix was an illusion.”
By a two-to-one majority, the Court of Appeal ruled that the EAT was not right. However the Appeal judges gave leave to appeal. “In the meantime employment tribunals should manage, list and decide cases in the knowledge that the last word has not been said, but is going to be said in the foreseeable future, on this topic,” Lord Justice Sedley said.