Commentary

(e) Recoverable damages for an already acquired cause and the 'Johnson exclusion zone'

Division AII Contract of Employment
| Commentary

(e) Recoverable damages for an already acquired cause and the 'Johnson exclusion zone'

| Commentary

(e)     Recoverable damages for an already acquired cause and the 'Johnson exclusion zone'

(i)     Events leading to dismissal

An action will lie at common law for a breach of the implied term of trust and confidence prior to dismissal and independently of the dismissal. However, such a common law claim cannot lie for events connected with the dismissal itself. This is because Parliament has legislated a statutory remedy of unfair dismissal and to allow such common law claims (for breach of the implied term of trust and confidence) to lie for breach of contract in respect of the dismissal would be to trespass upon an area carved out of the common law by statute. This is known as the 'Johnson exclusion zone.' The implied term of trust and confidence is about preserving the continued relationship and not about how the relationship is terminated.

The 'Johnson exclusion zone' is named after Johnson v Unisys Limited [2001] UKHL 13, [2001] IRLR 279. The claimant, a highly paid employee, was dismissed and given pay in lieu of notice. He brought unfair dismissal proceedings and was awarded the maximum compensation. At the time this was limited to £12,000 which was not much compensation for a highly paid senior employee. He then brought proceedings for breach of contract and negligence arguing that a major depressive illness (resulting in a mental breakdown) had been caused by the manner of the dismissal and the circumstances leading up to it. It was

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