Employment Judge McLarenIn person for claimantMr. Holden (instructed by Solicitor) for respondentDate 9 November 2022
JUDGMENT
The claimant’s complaint that there was a breach of contract is well founded. This means the claim succeeds.
REASONS
[1]This was a remote hearing by video conference call. A face-to-face hearing was not held because it was not practicable. The parties did not object.[2]I confirmed that I have been provided with two separate bundles, one from each party. The claimant’s bundle was 311 pages, the respondent’s bundle was 119 pages.[3]I heard evidence from the claimant on his own behalf, and from Mr Holden on behalf of the respondent.
Background
[4]The claimant filed an ET1 on 09/02/22 in which he brings a claim for breach of contract. This is resisted by the respondent as it says there was no contract between the parties.
The issues
[5]I agreed with the parties at the outset that the issues to be determined were these(a) was there a contract between the parties. The respondent says there was no contract, the claimant relies on a verbal agreement as evidenced by email correspondence which he says was concluded on 15 November.(b) If there was a contract, i. was the respondent’s action in varying the oral terms by sending out different written terms a breach of the implied term of trust and confidence sufficient to allow the claimant to treat the oral contract as at and end and resign? ii. did the claimant waive any such breach by delay in resigning. iii. If there was a breach of any contract, how much should the claimant be awarded as damages?[6]While the hearing was listed to deal with both liability and remedy, there was insufficient time for this. I asked parties whether they would be content to send in written submissions in relation to remedy before I had made any liability decision. The claimant did not wish to do so, and I accepted his preference was for me to make a liability finding and advise the parties of this and then to address to remedy at a further hearing if required. Nonetheless I have set out the relevant law as it relates to remedy to assist the parties.
Findings of Fact
[7]The claimant undertook a law degree which he successfully completed in 2013. He did not pursue a legal career at that time due to a need for flexibility to carry out childcare for his children. His family arrangements are such that he is the primary child carer.[8]At some point he obtained a role with Royal Mail, and he was carrying this out prior to the events that have led to this tribunal. He explained that this was a well-paid flexible role which he found rewarding, both socially with colleagues, but also because he was able to provide support to individuals during Covid, when he was often the only person they saw. In addition to a good salary, he explained that he was entitled to a generous share option package.[9]The bundles contained an exchange of emails from the 8 October 2021. They show that the claimant sent in his CV together with a cover email identifying the areas of law that predominantly interested him. Mr Holden responded to explain that the practice was a legal aid high street solicitor, but they could offer the chance to do probate work and possibly some conveyancing or litigation. Mr Holden suggested that if this was of any interest to the claimant, they try to meet.[10]On the same day, 8 October, the claimant responded to Mr Holden and said that he would love to be afforded the chance to work within the area of civil litigation. He explained that his aim was to complete the training contract and qualify as a solicitor.[11]Pressure of work meant that Mr Holden was not able to meet with the claimant until 5:30 PM on Saturday, 13 November. The two individuals met on that day and the bundles contained handwritten notes prepared by Mr Holden at the time. While Mr Holden’s witness statement said that he recollected he had a number of brief meetings with the claimant, he accepted that in fact this was their first meeting. I find that this meeting and the email exchanges I refer to here amount to the totality of the contact between Mr Holden and the claimant. Meeting on 13 November[12]The claimant gave evidence that he had a clear recollection of the meeting, Mr Holden’s recollection was less certain. He did make some notes at the time, and I was referred to these. The handwritten notes confirm that a salary was mentioned, in the maximum set out, the need for two references was discussed, and references were made to being a trainee solicitor. The notes also show that 25 hours was noted. Mr Holden was clear that he was told that the claimant currently worked reduced hours and that the discussion they were having about the claimant as a trainee solicitor was also to be on reduced hours.[13]Both agree that the meeting was to discuss a role as trainee solicitor, that would be on reduced hours and a salary was outlined. The parties disagree that the claimant told Mr Holden that he had a well-paid flexible job and Mr Holden could not recall being told that the claimant needed to collect a child from school. Mr Holden did not recall a discussion as to paid parking or office location at that meeting.[14]I find that the claimant did make Mr Holden aware of his then current job and its flexibility. I find this because the notes say, “been PO five years for 29 hours”. This contemporaneous note accords with the claimant’s recollection. On the balance of probabilities, I also find that office location and child pick up arrangements were discussed at this meeting. These were hugely important to the claimant, and I find it more likely than not that he explained this at the time. I prefer his recollection to that of Mr Holden whose written witness statement about what had occurred was on part at odds with the terms of the later emails, for example, as to whether he had met the claimant before 13 November.[15]For that reason, I also accept the claimant’s evidence that at this initial meeting Mr Holden had offered to pay for a parking space close to the Hastings office so that the claimant could make the school runs, had offered a pension scheme and promised to cover training contract expenses. I also find that at this meeting the parties agreed the job role, the maximum full-time salary, reduced hours of no more than 25, a start date in the New Year and the office location. I find that Mr Holden agreed these matters with the claimant in full knowledge and understanding of his flexible role with Royal Mail and his need for this flexibility to continue.[16]While Mr Holden characterised this as an exploratory meeting, based on my findings as to what the parties agreed I do not accept that. I find that this conversation set out the parameters for a working relationship which the respondent then took forward in subsequent email. Course of correspondence following the meeting[17]Following this meeting Mr Holden sent the claimant an email dated 15 November 2021 at 11.05 AM. It was set out as a follow-up to the meeting on Saturday when it notes that the two discussed the possibility of the claimant joining the firm as a trainee solicitor. Neither this email nor any of the subsequent correspondence is marked “subject to contract”. No reference express or implied is made to any written agreement being required. Instead, this email specifies that the claimant was to undertake four actions and that he, Mr Holden, would await hearing from the claimant.[18]These are the only four actions the claimant is required to take. There is no other reference to conditionality. The email does not specify that, for example Mr Holden needs to make further enquiries himself as to how to organise a training contract. Mr Holden suggested in his oral evidence that this was a clear precondition of any employment arrangement, but he accepted that he took no steps to carry out this research until after the date on which he would have expected the claimant to have signed the written document and to have started work. I find that, even if it was in his mind, he did not explain this to the claimant, and it cannot have been a conditionality when he himself took no steps to address that condition prior to the point when he would have accepted the relationship started.[19]The four actions the claimant had to undertake were to find out from the law society about the impact a gap of six years between signing a training contract and the date of the claimant’s LLP might have on the training contract procedure, to discuss with his wife the number of hours he would be able to devote weekly and to discuss the annual salary and to provide referees.[20]The email confirmed that the annual full-time salary would be £22,000 but that the claimant’s salary would be a proportion of that, depending on how many hours he was able to work. This had already been discussed at the meeting. The email also notes that they had agreed a start date in the New Year. It concluded that Mr Holden would await hearing from the claimant further. I find that this email confirms some of the points that had already been agreed in the first meeting.[21]The claimant responded at 13.32 the same day, 15 November. He provided the necessary information from the Law Society. He made reference to the cost of the exams at £3980 and said that he believed Mr Holden had said the firm would cover those costs. I find that this had been discussed at initial meeting since there is no other reason for the claimant to provide this cost to Mr Holden and that this was therefore already part of the agreement between the two.[22]The response email specified 28 hours per week, Mondays 9 AM to 6 PM on Tuesday to Fridays 9:30 AM to 2:30 PM. The claimant confirmed that the correct amount of remuneration would be £17,603.04 p. The claimant provided two references. The claimant set out his proposed start date as Monday, 17 January 2022 and noted that he had to inform his current employer of his intention to leave that week.[23]Mr Holden responded to that email also on 15th November at 15.05. He wrote “I confirm that all is in order, although I will not be taking up your references until after you have started but I’m sure your references will be fine”. Mr Holden confirmed that it was the respondent’s practice not to take up references until after an individual had started employment with it. I find therefore that the formation of the relationship with the claimant was not conditional upon satisfactory references. His ongoing relationship could have been terminated if they were not satisfactory, but it was addressed that way round. Mr Holden confirmed that the claimant would be provided with a parking space and agreed the amount of starting remuneration. The email concluded at the claimant was to feel free to drop into the firm between now and his start date.[24]At 15.13 on 15 November the claimant responded to Mr Holden thanking him for the email and the opportunity to join the firm. He confirmed that he was giving his notice at his place that week and would pop into the office to see if there were any textbooks you could borrow to have a read before he joined the firm. The claimant considers that this was his acceptance of an offer made to him by the respondent.[25]It was common ground that by 15 November the respondent had agreed a starting salary, a role, that of trainee solicitor, and a start date. I have also found that by this date the parties had agreed an office location, covering of expenses for law society exams, a parking space, and pension contributions. There is no other reference in the correspondence to the precise hours the claimant was to work until these are set out in the written contract. I find therefore that the respondent had also agreed the precise working pattern with the claimant as part of this correspondence and had agreed that by 15 November.[26]In considering the course of correspondence I find that the claimant was offered a role at the meeting on 13 November which was subject to some conditions. The claimant satisfied these conditions on 15 November and Mr Holden confirmed that this was the case. I find that there was therefore an offer, with the essential terms being agreed and this was accepted by the claimant.[27]I find it was clear from the email chain that the claimant was acting on this as a contract and had told the respondent he was about to resign his current job. As a very experienced solicitor I would have expected Mr Holden to raise some questions about this at the time if he did not consider that a contractual relationship had been formed. He did not do so and as already noted none of the correspondence was marked subject to contract, nor did the email chain make any reference to any requirement for a further written contract in place.[28]Mr Holden’s evidence is that the claimant is placing far too much weight on the words I confirm that is all in order. I find that the claimant certainly considered the meeting and the correspondence to evidence an intention to form a contract. I also find that a reasonable person reviewing what had happened would reach the same conclusion and I consider that on balance, the correspondence amounts to a clear offer with intention to form a contract which is accepted by the claimant.[29]I also find that the terms of the offer are sufficiently clear and unequivocal so that the offer can be accepted without further negotiation. All essential terms had been agreed. Events after 15 November[30]On 6 January the claimant visited the firm’s Hastings office and was given information about his future duties and was issued with a number of documents to read through and given office key. It was common ground that these documents included the induction pack and that the claimant provided joining information to allow payroll to be processed and a copy of his passport. There is a dispute as to why the claimant was given an office key. Mr Holden said it was because his staff told him the claimant was always popping in. The claimant vehemently denied that this was the case.[31]I prefer the claimant’s evidence on this point. Mr Holden, as he told me, sits on the top floor of the building and is not aware of comings and goings. He had no direct knowledge of when the claimant attended his office or not, the claimant has direct firsthand knowledge. On the balance of probabilities, I find it more likely that the claimant was given a key as part of the induction process because it was thought by staff that he was joining imminently, and he was regarded by all as a member of staff. It was not to assist him in popping in randomly.[32]Following that induction, the claimant sent an email the same day stating that he was looking forward to joining them on 17 January and attaching a case transcript. In a reply of 7 January Mr Holden noted that he looks forward to the claimant joining them soon. I find it is understood by all that the claimant is joining the firm on 17 January. There is no reference to any conditionality by the respondent or to any outstanding paperwork needing to be completed.[33]On 8 January 2022 the claimant contacted Mr Holden to let him know that he had just received his P 45 from his previous employer that he would be bringing it in to the respondent’s bookkeeper on Monday. The respondent therefore could be in no doubt that the claimant had resigned his previous employment in order to start the job with them. The written contract of employment.[34]While Mr Holden’s witness statement said that the claimant collected a copy of the standard contract of employment to take away and consider and that he did this on 6 January, he accepted his evidence that was not the case. It was agreed that the contract of employment was sent to the claimant in a letter dated 11 January which did not reach him until 13 January. That is four days before his start date.[35]The claimant took issue with the clauses in the contract. On 13 January at 15,10 he emailed Mr Holden to say that he couldn’t commit himself to commencing the role as a number of amendments would have to be made to the contract which he had just received and read. He asked if someone could get in touch with him so that they could go through the required changes so that it could be read and signed before he started on the Monday.[36]Mr Holden’s response was to suggest that the claimant brought the contract into work on Monday that they could be discussed. I find this does not suggest that the contract was to be signed as a prerequisite to start employment.[37]The claimant was not happy to accept that suggestion and set out his detailed concerns about some clauses of the contract in an email of 14 January. He raised questions about six things within the contract. This included what he believed to be a change to his place of work and his working hours. In his response he set out that he could only work in the Hastings office and therefore reference to work at other offices need to be removed. He also considered that reference in the contract to faithfully serving the firm and providing his whole time and attention energies and abilities was at odds with his part-time status and asked for a change to clarify that. He objected to text that said he could be asked to work such additional hours as was reasonable. He also raised a point as to holidays and the staff handbook. Finally, he objected to the prior agreements clause in the contract employment as she considered that would absolve Mr Holden many promises and statements made prior to that.[38]Mr Holden responded on 14 January at 11.17 that he could not agree to all of the amendments made to the standard contract. He believed that many of amendments were for the sake of it but specified that it was essential that the claimant could be required to work at the Ashford office. The email concluded if this means you’re not prepared to start work with the firm on Monday please let me know and please make arrangements to return the key.[39]The claimant responded at 11.51 the same day. He appears to have taken Mr Holden’s response that many of the amendments were for the sake of it an indication of his willingness to make changes to the contract. However, his email set out that he had informed Mr Holden at the meeting he had to based locally as he knows about his need to drop-off and pick up a son from school. Indeed, that was why the parking space had been negotiated. The claimant said he could work occasional Mondays at another location if the firm would pay his travel expenses. He explained that he had left a higher paid more convenient job, fantastic pension scheme and team of 107 friends order to join the respondent if, however, this change was not acceptable to the respondent he would return the office keys.[40]I find, based on the claimant’s correspondence that the term which he regarded as a fundamental breach was limited to the change to the office location. He believed that the other points could in fact be agreed between the two. I find, therefore that the claimant’s actions were in response to a breach of an express written term.[41]The relationship came to an end on 17 January when the claimant returned keys. It was agreed that the claimant never started work for the respondent and was never paid for any work. The claimant acted promptly in responding to what he believed to be a breach of the contract between the parties and the respondent accepted the contract coming to an end.[42]The claimant considers that the respondent’s action in changing his place of work was a breach of the implied term of trust and confidence. He believed, and I have found this to be the case, that the respondent was aware of the reason why he needed to work in one location and chose to disregard this. Relevant law Forming a Contract
Relevant law
[43]A contract of employment may be either written or oral, or a mixture of the two. For a contract of employment to be enforceable, it must have all the elements of a legally binding agreement; that is there must be an offer, acceptance, consideration and an intention to be legally bound. The relevant considerations are the promise to provide services on the part of the employee and the promise to pay wages on the part of the employer. Once the offer has been accepted there is a legally enforceable contract and either party can sue for a breach.[44]An offer is an indication of a willingness to be bound by a contract. It need not be in writing, but it must be made with the intention of being legally bound as soon as the offer is accepted. However, an apparent intention to be bound may be sufficient, if a reasonable person would believe that the offeror intended to be bound by his or her words or conduct. Where there is a conflict of evidence, the employment tribunal will decide whether, on its findings of fact, an offer was made.[45]The offer must be capable of immediate acceptance. In other words, it must be sufficiently clear and unequivocal to enable the person to whom it has been made to accept it without further negotiation. Constructive wrongful dismissal[46]Under general contractual principles a breach of contract entitles the innocent party to sue for damages. However, it does not always entitle the innocent party to terminate the contract. Broadly speaking, the right to terminate the contract only arises where the breach in question is sufficiently serious to amount to a repudiation of the whole contract. This may be because the term breached goes to ‘the root of the contract’, or because the party’s words or conduct indicate that he or she does not intend to honour future obligations under the contract.[47]Where one party to a contract repudiates the contract, the innocent party can either refuse to accept the repudiation and affirm the contract or accept the repudiation and treat the contract as discharged. A repudiation or fundamental breach of contract by one party has to be accepted by the other party before the contract can come to an end. If the contract is terminated before the actual start date, the employee will have a claim for wrongful dismissal. Remedy for breach of contract/wrongful dismissal[48]Where an employee is dismissed (or constructively dismissed) in breach of contract, the general measure of damages is the sum which the employer would have had to pay in order to bring the contract to an end lawfully – that is the sum payable in respect of the notice period. In Addis v Gramophone Co Ltd 1909 AC 488, HL, the House of Lords ruled that an employee who was wrongfully dismissed without notice could not recover damages to compensate him or her for the manner of the dismissal, for his or her injured feelings, or for the loss he or she may sustain from the fact that the dismissal itself makes it more difficult to obtain new employment.[49]However, it is possible in rare cases for damages to be awarded for losses extending beyond the notice period where the employee’s loss has resulted from the employer’s breach of contract which is not the dismissal itself.[50]I was referred to Malik v Bank of Credit and Commerce International SA (in compulsory liquidation) 1997 ICR 606, HL. The House of Lords held that the bank was in breach of the implied term of trust and confidence and that if it could be established that the breach of contract caused foreseeable financial loss, then the employees should be able to recover damages for that loss, even if it occurred after the contract had been brought to an end.[51]Losses occurring beyond the end of the notice period can therefore be recovered as damages if they can be shown to be specifically attributable to a breach other than the wrongful dismissal itself. The Addis case does not stand in the way of a damages claim if that claim is rooted in a breach other than the failure to give notice, for example, a breach of an implied term. Hence, in Malik, the loss was directly attributable to the carrying on of a corrupt business, which was a breach of the implied term of trust and confidence, and not to the dismissal itself.
Conclusion
[52]In applying the relevant law to my findings of fact I conclude as follows. Was there a contract formed on 15 November?[53]There is no requirement for an employment contract to be in writing. What is required is offer acceptance and consideration. I have found that Mr Holden made an offer based on their discussion on 13 November and the email chain on 15 November. The claimant clearly accepted this, and this was obvious to Mr Holden. I have found there was an intention to create contractual relations. I conclude that there was consideration in the offer of employment made by the respondent and the offer of his services in return by the claimant.[54]Accordingly, I conclude there was a contract of employment in place by 15 November. Nothing further was required and the introduction of the written terms was therefore in effect a variation of the existing contract. Was that contract breached by the written terms?[55]I have found that the term about office location was agreed between the parties as Hastings. The respondent fully understood the reason for the claimant’s limited ability to attend at other sites. To go to Ashford would be entirely impracticable with a pickup from school and the respondent was aware of this fact. I conclude therefore that sending a written document which changed the place of work, albeit on an occasional basis, and refusing to alter this did amount to a fundamental breach of a term of the contract. This was sufficient to allow the claimant to treat the oral contract as at an end and resign.[56]The claimant reacted very promptly to such breach, and I conclude there is no question of waiver by delay. Both sides accepted the contract between them was at an end.[57]For these reasons I therefore conclude that the claim for breach of contract is well-founded. As set out earlier, I have not gone on to consider what the claimant should be awarded as damages. I note, however that subject to hearing further submissions from the parties on this point, it would appear that the loss is attributable to the constructive wrongful dismissal itself. While the reason for the constructive wrongful dismissal was potentially a breach of an implied term, that is the background to the breach. On these facts the loss here is from the dismissal itself and not from the potential breach of any implied term. …………………………………………………………. REMEDY JUDGMENT The claimant’s complaint that there was a breach of contract having succeeded the tribunal makes an award of £1354 being four weeks pay.
Background
[1]There was a liability hearing in this matter on the 26 October 2022 in which I found that the claimant’s complaint of breach of contract was well-founded and succeeded. This matter today was listed to address the question of the appropriate remedy.[2]In advance of the hearing the respondent provided a skeleton argument and attached a number of documents to that, namely the contract of employment that had been sent to the claimant, a job description, and an extract from the disciplinary policy and procedure. The claimant provided a bundle of 655 pages containing his submissions, legal authorities and evidence of his attempts to mitigate his loss.[3]I agreed with the parties that there were two areas of dispute that I have to determine. The first was what was the notice period that governed the contractual relationship between the parties. This is relevant because it is respondent’s contention that any remedy should be limited to contractual damages alone.[4]The second was whether on the facts and circumstances of this case the claimant could establish that the breach of contract arose from an implied term, the breach related to something other than dismissal and that this breach caused foreseeable financial loss so that he could recover damages for that loss.[5]I had addressed this to some extent in the liability finding which had found as follows “I conclude there was a contract of employment in place by 15 November. Nothing further was required and the introduction of the written terms was therefore in effect a variation of the existing contract.55. I have found that the term about office location was agreed between the parties as Hastings. The respondent fully understood the reason for the claimant’s limited ability to attend at other sites. To go to Ashford would be entirely impracticable with a pickup from school and the respondent was aware of this fact. I conclude therefore that sending a written document which changed the place of work, albeit on an occasional basis, and refusing to alter this did amount to a fundamental breach of a term of the contract. This was sufficient to allow the claimant to treat the oral contract as at an end and resign.56. The claimant reacted very promptly to such breach, and I conclude there is no question of waiver by delay. Both sides accepted the contract between them was at an end.57. For these reasons I therefore conclude that the claim for breach of contract is well-founded. As set out earlier, I have not gone on to consider what the claimant should be awarded as damages. I note, however that subject to hearing further submissions from the parties on this point, it would appear that the loss is attributable to the constructive wrongful dismissal itself. While the reason for the constructive wrongful dismissal was potentially a breach of an implied term, that is the background to the breach. On these facts the loss here is from the dismissal itself and not from the potential breach of any implied term.”[6]I had agreed, however, at that hearing that, because the claimant wished to make submissions in support of compensation beyond any agreed notice period that I would hear those at a separate remedy hearing which was the purpose of today’s hearing.[7]In reaching my decision and considering the amount to be awarded I considered the written and oral submissions by both parties and the documents which I have been provided. Preliminary matter[8]The claimant made an application that the respondent’s written submissions and any law to which they wished to refer to be excluded from the hearing because they had not sent their written skeleton seven days in advance of the hearing as the employment tribunal had directed.[9]I heard both parties on this application and determined that the written skeleton could be relied upon by the respondent. The tribunal directions and made it clear that in the absence of written representations both parties would have a full opportunity to say what they wish to and therefore there was little to be gained in excluding a written document as its substance would then be repeated verbally anyway. A skeleton argument is useful and I find it is of great assistance to the claimant to have a document in writing than to have to listen and note oral submissions.[10]I explained that I cannot exclude case law from my decision and both parties have an obligation to draw my attention to any case law that is relevant. Remedy findings What was the contractual notice period?[11]The contract of employment specified at paragraph 1 that the agreement was subject to a three month probationary period. Paragraph 9 of the contract set out the right of termination and specified that the relationship could be terminated with not less than four weeks notice during the first two years of continuous employment.[12]It was initially submitted by the respondent that the reference to a probationary period at paragraph 1 of the contract entitled it to give the claimant one week’s notice during the probationary period ,and that this had been explained to the claimant when the terms and conditions are being negotiated. The respondents representative then accepted that this was not the case, no such conversation had taken place and the contract of employment did not provide for shorter notice during the probationary period.[13]The respondent’s representative then indicated that the staff manual is incorporated into the contract and it is the staff manual that includes the shorter notice period during probation. We adjourned briefly to allow the respondent to send the tribunal a copy of the staff handbook. Upon our return the representative confirmed that this was not the case, there was no such reference.[14]The respondent’s representative therefore accepted that, as far as the written contract was concerned, the notice period during the first two years was four weeks.[15]As I had previously determined, this written contract was not the contract that governed the terms between the parties. That had been formed from the email exchanges and some conversations and was in place by 15 November 2021. It was accepted that this oral contract made no express reference to any notice period.[16]Both parties agreed that four weeks would be a reasonable notice to be implied into this contract. Relevant Law on notice period[17]I was referred to the decision of the employment tribunal taken by Employment Judge Ord on the 23 March 2016. This set out that where no contractual notice period agreed, then it is a question of what is reasonable.[18]The Employment Rights Act 1996 sets out minimum periods of notice so that one week applies where an employee has been employed for at least four weeks. However, that is only the minimum period, the test is what is reasonable. Conclusion on Length of the notice period[19]I have found that no notice period was expressly agreed between the parties when the verbal contract was formed by 15 November. I’ve also found that the respondent’s practice, as evidenced by its standard contract template, would be to provide four weeks notice during the first two years of employment.[20]I note that the statutory minimum provides for one week’s notice after a period of one month. The claimant was not employed even as long as that. Applying the relevant legal principles I must determine what is a reasonable notice period to be implied into this contract.[21]Based on the respondent’s practice and by agreement with the parties I conclude that this would be four weeks.[22]The parties also agreed the method of calculating four week’s notice and agreed that this would be a figure of £1354. That is calculated by dividing the annual salary of £17,603 by 52 to obtain a weekly figure and then multiplying that by 4 to obtain a figure for four weeks pay. Relevant law-damages for breach of contract[23]While I set out a summary of the relevant law in my liability decision, I set out a fuller summary in this decision. With the exception of Johnson, the cases I have referred to below were relied upon by the claimant.[24]Wrongful dismissal is a dismissal in breach of contract. The employee will have a claim in damages if the employer, in dismissing them, breached the contract, thereby causing them loss. The remedy is to put the employee in the position they would have been in had the contract been performed by the employer lawfully terminating the contract. As this is a claim for an unliquidated sum ( the wages not having been earned) it is subject to mitigation.[25]In Addis v Gramophone Co Ltd 1909 AC 488, HL, the House of Lords ruled that an employee who was wrongfully dismissed without notice could not recover damages to compensate him or her for the manner of the dismissal, for his or her injured feelings, or for the loss he or she may sustain from the fact that the dismissal itself makes it more difficult to obtain new employment.[26]In general, the law of contract is that it is not possible to recover damages for mental distress, anguish, annoyance, loss of reputation or social discredit caused by the circumstances or manner of a breach of contract .The manner of the dismissal does not entitle an employee to compensation for loss additional to that available for breach of contract.[27]There are nonetheless rare cases where damages may be awarded for losses extending beyond the notice period where the employee’s loss has resulted from the employer’s breach of contract which is not the dismissal itself.[28]I was referred to Malik v Bank of Credit and Commerce International SA (in compulsory liquidation) 1997 ICR 606, HL, in which it was held that damages for breach of the implied term of trust and confidence should be assessed in accordance with ordinary contractual principles. In that case , the loss was directly attributable to the carrying on of a corrupt business, which was a breach of the implied term of trust and confidence, and not to the dismissal itself. Losses occurring beyond the end of the notice period will only be recoverable as damages if they can be shown to be specifically attributable to a breach other than the wrongful dismissal itself.[29]In Johnson v Unisys Ltd 2001 ICR 480, HL the impact of the manner of the dismissal itself was considered . The majority determined that the implied term of trust and confidence was concerned with preserving the ongoing relationship between the parties and was not appropriate for use in connection with the way in which the relationship is terminated. The majority considered that it would be contrary to public policy and an improper exercise of the judicial function to develop a new common law right which covered the same ground as the statutory right not to be unfairly dismissed, as this would fly in the face of the statutory limits that Parliament had prescribed in the legislation on unfair dismissal. Mitigation[30]The employer’s liability will normally cease before the date of the remedies hearing if the employee has (or ought to have) got a new permanent job paying at least as much as the old job as there will no longer be a loss arising from the dismissal.[31]The current Presidential Guidance on mitigation provides as follows:• All persons who have been subjected to wrongdoing are expected to do their best, within reasonable bounds, to limit the effects on them. If the Tribunal concludes that a claimant has not done so, it must reduce the compensation so that a fair sum is payable.• The Tribunal will expect evidence to be provided by claimants about their attempts to obtain suitable alternative work and about any earnings from alternative employment.• The Tribunal will expect respondents, who consider that the claimant has not tried hard enough, to provide evidence about other jobs which the claimant could have applied for Submissions on damages[32]Both parties agreed the legal position. That is, as I set out above, the general proposition is that wrongful dismissal damages that arise from the dismissal itself are limited to payment for what would have been the notice period.[33]Further financial loss beyond the notice period can only be awarded in limited circumstances. Those are that the breach of the implied term of trust and confidence arose from something that is not the dismissal itself. Foreseeable financial loss may then be recoverable.[34]In his submissions the claimant made the following points. His argument was that from the evidence I heard at the liability hearing it was beyond reasonable doubt that Mr Holden never intended to honour the verbal contract. It was submitted that it was Mr Holden’s intention to deceive the claimant into signing a contract worded so as to breach the agreement reached by 15 November. The claimant referred me in his written and oral submissions to many examples of what he said was Mr Holden’s lack of truthfulness in support of his argument that Mr Holden knew he was not going to honour the agreed terms. He concluded there were simply too many examples of this for it to be a mistake or error or to be given some generous interpretation other than dishonesty.[35]In this way the claimant states that the breach of the implied term occurred before he was sent a written contract. The breach occurred at point prior to that when Mr Holden determined that he was not going to honour the contract and I could conclude that was the case because of his actions, that is the dishonest conduct, which had occurred.[36]The claimant further submitted that his losses flow from this breach and not from the dismissal and it was this breach which caused foreseeable and continuing financial losses. He submitted that it was foreseeable that he would not get a job comparable to the one he held at Royal Mail, especially in the post covid economic downturn and in particular because of his age. Having to take legal action against the law firm meant the prospect of obtaining a job in the legal profession was unlikely and this was also foreseeable.[37]The respondent’s submission was that there were no findings of fact made my liability decision about any dishonesty. There was clearly no intention to breach the contract prior to the event on which the claimant relied. There was no evidence Mr Holden didn’t intend to act on the contract. As to any reputational damage which the client was seeking, the respondent considered that that was not because of the respondent’s actions but because of those of the claimant in publicising his views about the respondent to all the local law firms. Conclusion- Damages[38]The claimant has not persuaded me that there is any evidence that Mr Holden always intended to breach the contract and therefore that there was any breach of the implied term of trust and confidence prior to or other than the dismissal itself. I accept Mr Holden’s evidence was contradictory and I preferred the claimant’s evidence to that of Mr Holden, however, I did not make any findings that Mr Holden intended to deceive all had in some way agreed with the claimant that would work only locally while always intending that he would not honour that promise.[39]I conclude that it is too big a leap to interpret Mr Holden’s as an active intention to breach the contract and to find that he had no intention of honouring the contract. There is therefore no breach of any implied term prior to the dismissal itself.[40]On that basis, the losses can flow only from the dismissal and are therefore limited to the notice period. And therefore awarding the claimant a sum equivalent to 4 weeks pay. While the claimant made many attempts to mitigate his losses. I conclude that is entirely reasonable that he was unable to do so in a four week period. I am therefore not applying any reduction to this. 05/05/2023