Has a recent High Court ruling created a new concept of accidental dismissal? Peter Taheri reports
In Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch), the claimant, having been demoted, claimed breach of contract while remaining in the trust’s employment. He was awarded only £98, as the High Court held he was wrongfully dismissed. Can that be right, when the employer had not purported to dismiss and the employee never claimed constructive dismissal?
Establishing the Hogg principle
Practitioners are familiar with the concept of constructive dismissal: the employer commits a repudiatory breach of the employment contract, in response to which the employee resigns. Perhaps less everyday is Hogg v Dover College [1990] ICR 39, EAT, where the claimant’s unfair dismissal claim succeeded even though he was still in the respondent’s employ. Understanding Hogg is pre-requisite for a discussion of Smith.
In Hogg, the Employment Appeal Tribunal (EAT) found that the employee “was being told that his former contract was from that moment gone”. To the employer’s argument that there was no dismissal, only a variation, the EAT replied:
