Catriona Stirling comments on the implications of the Supreme Court decision in Edwards v Chesterfield and Botham v Ministry of Defence


This article was first published in the Solicitors Journal (

The Supreme Court decision refusing a dismissed employee compensation for the way he was sacked provides a further prompt to review the interaction of employment legislation with common law remedies, says Catriona Stirling.

Employees may not recover damages for loss suffered as a result of a breach of an express contractual term in the way they were dismissed, the Supreme Court has ruled in a muchanticipated decision in the cases of Edwards v Chesterfield Royal Hospital and Botham v Ministry of Defence [2011] UKSC 58. Seven justices held by a majority that damages will only be awarded if the loss can be shown to have preceded and be independent of the dismissal. The judgment had been long-awaited by employment lawyers, who were surprised by the Court of Appeal’s decision in the case. They will hope that past arguments about whether employees can go behind the unfair dismissal legislation and obtain a remedy at common law for the manner of their dismissal can now be laid to rest. 

Following Edwards, where there is a breach of contract, dismissed employees who cannot show that the reason for their legal action arose prior to and independently of their dismissal are left reliant on the statutory remedy of unfair dismissal, with its attendant exclusions and limitations on compensation. This is significant because damages for breach of contract under common law are theoretically unlimited.

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