breach, the claimant was not entitled to recover damages for his depression and its consequences on grounds of causation and/or remoteness.
The Court of Appeal (lead judgment: Underhill LJ) dismissed the FCO's appeal against the findings of breach of contract and causation. But it allowed its appeal on the issue of remoteness of the claim for psychiatric injury. There is a masterly survey of the authorities on remoteness at para 79-133. And the judgments are rich in the analysis of the law in this area generally. In contract, the question is: was the damage in question of kind which was "not unlikely" to result? In tort, was the damage "reasonably foreseeable"? The former test requires a higher degree of likelihood of damage occurring than the latter. It therefore made more sense to start with the claim for the breach of the common law duty of care, since the tortious test of remoteness was more favourable to the claimant. The Court came to the conclusion that it was wrong to find that it was reasonably foreseeable that the FCO's conduct in withdrawing the claimant from his post without having had the opportunity to state his case might lead him to develop psychiatric illness. According to the Court, it would be exceptional that an apparently robust employee, with no history of any psychiatric ill health, would develop a depressive illness as a result even of a very serious set back at work. The FCO could not have foreseen, in the absence of any sign of special vulnerability, that the claimant might develop a psychiatric illness as a result of its decision. It therefore followed that if the losses were too remote to be recoverable in tort, they were also too remote to be recoverable in contract.
Effect of not objecting to contract variations
28 November 2014
An employment tribunal has ruled on the question of whether an employee impliedly accepted a variation of her contract of employment by continuing to work, without expressly objecting to it, for 9 years.
Many thanks to Daniel Barnett for this report on the decision in the case of Wess v Science Museum Group.
Ms Wess was employed in various curator roles from 1979. Originally she had been entitled to 6 months’ notice of termination. In 2003, she was sent a new contract which - among other changes - purported to reduce her notice entitlement to 12 weeks. She never signed the contract, as requested; but neither did she say that she objected to the new terms. She continued to work until her dismissal on 6 weeks’ notice. The ET found that Ms Wess had impliedly assented to a variation of her contract, and the EAT held that that was a permissible conclusion. Although tribunals must be cautious in finding implied acceptance of a unilaterally-imposed new term whose effect is not immediate, the employer had made it plain here that future employment was offered on the basis of an entirely new contract. The result is plainly right, even if contract pedants may regret that the EAT passed up the opportunity to clarify the often-blurred distinctions between affirmation, acceptance of variation, and waiver of breach.
Aerosol and perfume ban not a practicable reasonable adjustment
1 December 2014
CIPP Policy News Journal
08/04/2015, Page 130 of 521
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