Hello and welcome back to your case law update. Last week we had our monthly employment law update which had features on Dominic Cummings, Emma Watson launching a sexual harassment helpline and pet bereavement leave. Going back further, our previous case law update focused on calculating holiday pay. This week, we have two cases, one on breach of contract and another concerning employment tribunal procedure.

Our first case concerns breach of contract. Traditionally, a breach of contract claim is bought in the County Court. However, in the County Court, if the claim value exceeds £10,000.00, the losing party will have to pay the winner’s legal costs. This poses a significant risk to prospective claimants.

In the employment tribunal, where costs are rarely awarded and only if certain requirements are met, a Claimant can bring a breach of contract claim worth up to £25,000.00 under the Industrial Tribunals Extension of Jurisdiction (England and Wales) Order 1994. This significantly reduces the risk of the Claimant paying costs despite the cost-free claim value rising £15,000.00. There are also no longer any tribunal fees whereas there are issue and hearing fees in the County Court.

In general breach of contract claims in the employment tribunal are usually for notice pay – also known as wrongful dismissal. However, they can also be for the monetary value of another contractual benefit such as a long-service holiday to an exotic destination. The breach of contract has to be outstanding at the date of termination.

In light of the above today’s question is:

Can an employee who has been dismissed for poor performance bring a breach of contract claim if the employer has not supplied adequate training or support?

Mr Antony, the Claimant, worked as an in-store expert for Dyson Ltd, the Respondent. The Respondent manufactured and sold vacuum cleaners and the Claimant was the in-store expert at the Respondent’s section of a John Lewis department store.

The Claimant’s contract included a provision for performance management which stated he would be provided with the necessary support and training to fulfil his role. The Claimant was dismissed after he did not pass his three-month probation period. The Claimant was paid in lieu of his one week’s notice.

The Claimant brought a breach of contract claim citing the Respondent’s failure to provide support and training as the reason for him failing his probationary period. At a preliminary hearing the employment tribunal struck out the claim for having no reasonable prospects of success. It held that as the Claimant had been paid his notice, there was no breach and the claim was a means to circumvent the two-years’ service requirement to bring an unfair dismissal claim.

The Claimant appealed. He argued that the Respondent had not complied with the performance management clause so to dismiss him for failure to perform was a breach of contract and for this he was entitled to damages.

The EAT dismissed the appeal. There were no damages the Claimant could be awarded as any alleged failure by the Respondent did not grant him an extended notice period or unfair dismissal rights. As such there was no further loss.

The takeaway point:

In this case, as the Claimant had paid his notice, no, you cannot bring a breach of contract claim for failure to provide adequate training. However, if notice had not been paid then the Claimant would be able to bring a claim as the poor performance did not give grounds to dismiss without notice.