Once more unto the breach?

The consequences of the interaction between the common law action for breach of contract and its associated remedies and the newer statutory claim for unfair dismissal and the remedies available from the tribunal have been described by various law lords as “awkward”, “unfortunate” and “anomalous” and in need of “urgent attention by the legislature”. In the Supreme Court decision of Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58, [2011] All ER (D) 101 (Dec), Lord Phillips described it as a difficult area of law and acknowledged that it may need to be fundamentally reviewed.

Edwards: the facts

Edwards was employed as a consultant surgeon. His contract of employment included an express term entitling his employer to dismiss him on three months’ notice. For the appeal it was accepted that there were express terms relating to the disciplinary process and that the contract incorporated