The States Employment Board v Amar Alwitry

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Crow JA
• Judgment Date: 10 July 2019
• Neutral Citation: [2019] JCA 134
• Date: 10 July 2019

[2019] JCA 134

Court of Appeal

Before:

Sir William Bailhache, Bailiff, President

Jonathan Crow, Q.C.

Lord Anderson of Ipswich, K.B.E. Q.C.

Between

The States Employment Board

Appellant

and

Amar Alwitry

Respondent

M. Temple Esq., Solicitor General, for the Appellant.

Advocate S. M. J. Chiddicks for the Respondent.

Authorities

Alwitry v States Employment Board [2019] JRC 014.

Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 All ER 278.

Gunton v Richmond-upon-Thames LBC [1981] Ch 441.

McDonald v Parish of St Helier [2005] JRC 074

McDonald v Parish of St Helier [2005] JLR 212.

Jeanne v Jersey Telecom Ltd [2009] JCA 138.

Grove and Briscoe v Baker [2005] JLR 348.

Chitty on Contract (33rd ed.)

Neary v Dean of Westminster [1999] IRLR 288.

Briscoe v Lubrizol Limited [2002] IRLR 607.

Malik v BCCI [1988] AC 20.

Johnson v Unisys Ltd [2003] 1 AC 518.

Omilaju v Waltham Forest LBC [2005] ICR 481.

Ouvres Complètes de Pothier, vol 6, Septième Partie.

Rawlinson v Brightside Group Ltd [2018] ICR 621.

Boston Deep Sea Fishing & Ice Co v Ansell (1888) 39 ChD 399.

Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR 1.

Tullett Prebon Plc v BGC Brokers LP [2011] IRLR 420.

European Convention on Human Rights.

Wilson v UK (2002) 35 EHRR 20.

Sisman v Turkey (App. No. 1305/05, 27 September 2011).

Lauffer v Barking, Havering & Redbridge University Hospitals NHS Trust [2010] Med LR 68.

Phipson on Evidence (19th ed.).

Skidmore v Dartford & Gravesham NHS Trust [2003] ICR 721.

Mattu v The University Hospitals of Coventry & Warwickshire NHS Trust [2013] ICR 270.

North v Television Corp Ltd [1976] 11 ALR 599.

McClelland v Northern Ireland Health Services Board [1957] 1 WLR 594.

Ridge v Baldwin [1964] AC 40.

Voisins Department Store Ltd v Soares [2014] JRC 004.

Boardman v Nugent Care Society [2013] ICR 927.

Janciuk v Winerite Ltd [1998] IRLR 63.

Kerslake v North West London Hospital NHS Trust [2012] EWHC 1999 (QB).

CSS Limited v Nautech Services Ltd [2015] JCA 021.

Court of Appeal (Civil) Rules 1964

Appeal against the judgment of the Royal Court dated 6 February 2019

Crow JA

This is the judgment of the court.

INTRODUCTION

1 This is an appeal against the judgment of the Royal Court (Samedi Division), Clyde-Smith, Commissioner, with Jurats Olsen and Grime, dated 6 February 2019 ( Alwitry v States Employment Board [2019] JRC 014 “ the Royal Court's Judgment”). There is also a Respondent's Notice seeking to uphold the overall outcome of the Royal Court's Judgment but at the same time to overturn five findings of fact on which one part of it is based.

THE FACTS

2 The Royal Court set out the relevant evidence in §6 – 266 of its Judgement which we will not repeat, but which should be treated as incorporated into this judgment. i It is sufficient for present purposes to record the following salient features.

3 By letter dated 8 August 2012, the Health and Social Services Department (“ the HSSD”), acting with delegated authority from the Appellant (“ the SEB”), offered the Respondent (“ Mr Alwitry”) an appointment as a Consultant Ophthalmologist at the General Hospital. There were then some negotiations regarding the start-date, Mr Alwitry having stated in his application that he needed to give six months' notice in relation to his existing appointment, and the HSSD initially asking him to start on 12 November 2012. The negotiations resulted in a compromise with Mr Alwitry agreeing to start work on 3 December 2012 on a part-time basis, moving to full-time work on 11 February 2013. The employment contract (“ the Contract”) reflecting these terms was signed by the HSSD on 21 August and by Mr Alwitry on 24 August 2012, at which point it became unconditionally binding.

4 Clause 1 of the Contract described it as a “ permanent contract”. Clause 3 recorded that it was “ essential … that the Employee and the Employer work in a spirit of mutual trust and confidence” and to that end the parties agreed “ to co-operate with each other” and “ to maintain goodwill”. Clause 17 provided that “ Wherever possible, any issues relating to conduct, competence and behavior should be identified and resolved without recourse to formal procedures. However, should the Employer consider that the Employee's conduct or behavior may be in breach of the Consultant Disciplinary Code … the Employer will resolve the matter through the disciplinary procedures”. Clause 30 provided that the Contract “ and associated Terms and Conditions contain the entire terms and conditions of the Employee's employment”. Clause 29 provided that Schedule 18 of the Terms & Conditions (“ T&C”) contained provisions governing termination of employment. Schedule 18 is headed “ Termination of Employment”. Under §18.1, the Employee was entitled to a minimum of three months' notice, unless (pursuant to §18.2.4) the Contract was terminated without notice for gross misconduct (among other things). Under the heading “ Grounds for Termination of Employment”, §18.2.1 provides that:

“A consultant's employment may be terminated for the following reasons:

• • conduct

• …

• • where there is some other substantial reason to do so in a particular case.”

5 Both before and after signature of the Contract, there were prolonged negotiations between the parties as to the exact terms of Mr Alwitry's Job Plan, i.e. his working timetable. Mr Alwitry also raised concerns about the level of his Programmed Activities (“ PAs”), i.e. his working hours each week, but those concerns were not addressed by the hospital management. In the event, the inter-actions between Mr Alwitry and both hospital management and hospital staff caused the HSSD to reconsider its willingness to employ him at all, and in late October 2012 it consulted the Law Officers regarding the implications of terminating the Contract before Mr Alwitry had started work. The Law Officers advised on 30 October that any withdrawal of an unconditional offer would be likely to amount to a breach of contract, in which case the employee would be entitled to sue for damages, namely “ an amount corresponding to payment for the period of notice to which the employee would have been entitled had he or she started work and then been dismissed”.

6 Meanwhile, Mr Alwitry contacted the British Medical Association (“ BMA”) regarding his PAs, and the BMA in turn made contact with Mr Jones, the Medical Staffing Manager at the General Hospital, by email on 12 November 2012. This approach by the BMA was interpreted by the hospital management as indicating that a complaint had been made by Mr Alwitry against Mr Downes, a Consultant Ophthalmologist and Clinical Director at the General Hospital. On that basis, the contact from the BMA precipitated a decision being taken the next day by the HSSD to terminate the Contract. Three days later, on 15 November 2012, the HSSD sought approval from the SEB for its decision, which was given. As a result, on 22 November 2012 the HSSD wrote to Mr Alwitry withdrawing what was described as the offer of employment and stating that any contractual relationship, to the extent that it existed, was to be treated as terminated.

7 The impact of this decision on Mr Alwitry was described by the Royal Court as “ understandably severe”, and it quoted his evidence at length in §100 of its Judgment. Mr Alwitry initially sought reinstatement, submitting a claim with the Jersey Employment Tribunal on 8 July 2013. That claim was, however, withdrawn by letter dated 4 December 2014.

THE CLAIM & THE ROYAL COURT'S JUDGMENT

8 These proceedings were issued on 13 January 2017. Mr Alwitry initially sought damages for conspiracy, breach of contract, inducing breach of contract, and defamation. His Schedule of Loss itemised pecuniary damages approaching £8 million, but in addition he also sought punitive or exemplary damages. By the end of the trial, all of his claims had been abandoned other than that for breach of contract. Mr Alwitry maintained his claim for both pecuniary damages and also for punitive or exemplary damages.

9 The trial was held between 19 September and 2 October 2018. Pursuant to directions given on 20 July 2018, the trial dealt only with (a) the issue of liability and (b) “ whether as a matter of Jersey law, damages are limited to the contractual notice period plus any ‘Gunton’ extension”. The second element raised two subsidiary issues. The first was the availability of exemplary or punitive damages. The second was the applicability on the facts of the ‘Gunton extension’. This was a reference to certain English case-law which establishes the principle that damages for wrongful dismissal are capped by reference to the remuneration that would have been payable during any notice period to which the employee would have been entitled had the contract been terminated lawfully (sometimes referred to as the ‘Edwards cap’ after the decision in Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 All ER 278) together with the remuneration that would have been earned during any disciplinary process, if the grounds of dismissal would, properly implemented, have triggered such a process (sometimes known as the ‘Gunton extension’ after Gunton v Richmond-upon-Thames LBC [1981] Ch 441). It was common ground between the parties in the court below and in this court that these principles of English common law have been recognised as part of the customary law of this jurisdiction in McDonald v Parish of St Helier [2005] JRC 074, [2005] JLR 212, and Jeanne v Jersey Telecom Ltd [2009] JCA 138. In particular, as this court said in Jeanne at §30, a wrongfully dismissed employee “ must normally accept the repudiation and sue the employer for damages” and even if the employee is able to refuse to accept the repudiation, “ the right to sue for continuing wages lasts only for the period it would have taken for...