Not where the removal from work may have taken place some weeks prior to dismissal, says the Court of Appeal in Monk v Essex County Council.
On 10th July 2008, the Claimant, a primary school administrative assistant was asked to leave school premises immediately. The Claimant alleged, in a High Court claim for personal injury, that she felt humiliated at her public removal and as a result suffered a psychiatric injury.
The Claimant's claim stated her dismissal occurred on 10th July, however the Claimant later argued that she was dismissed on 31st August, as she was paid until this date. Considering dismissal occurred on 10th July, the High Court struck out the claim as it fell within the Johnson v Unisys exclusion area.
The Court of Appeal confirmed that the Johnson exclusion area prevents the pursuance of common law claims, such as personal injury actions, which are caused by an employee's dismissal or the manner of dismissal, but not claims which are independent of dismissal.
Although not reaching a firm conclusion as to the date of dismissal, Moore-Bick LJ stated that if the Claimant had been dismissed on 10th July, her removal on that day was probably too closely related to dismissal to escape the Johnson exclusion area, whereas if she had been dismissed on 31st August, it would be difficult to argue her removal on 10th July was sufficiently closely related to dismissal to be excluded. Interestingly, Underhill LJ opined that even if the Claimant had been dismissed on 10th July, the Claimant's removal from work might still be regarded as independent of dismissal and not fall within the exclusion area.
The decision to strike out the claim was overturned and the Claimant was allowed to amend her claim to argue that she was dismissed on 31st August.