Wrongful Dissmissal Flashcards
What is wrongful dismissal?
Wrongful dismissal is when an employer breaches an employee’s employment contract and terminates their employment unlawfully.
To claim wrongful dismissal, an employee must prove that:
They were dismissed in a way that breached their contract
They suffered a loss as a result of the breach
What are the types of breach of contract in wrongful dismissal?
Common examples of wrongful dismissal include:
Dismissing an employee without giving them notice or notice pay
Not giving someone the full notice period they’re entitled to
Terminating a fixed-term contract before its expiry
Breaching a contractual disciplinary or redundancy procedure
Breach of a notice term
There is usually notice in the contract of employment for either party to give notice.
If there is no provision, the employee is entitled to the amount specified in S86 ERA 1996 after one month’s employment has passed.
Notice under S86 ERA 1996 provides statutory guidance on notice of dismissal, varying on length of service by employee:
- 1month-2 years is one weeks’ notice
- 2-12 years’ service, one week for each complete year of service up to a maximum 12 weeks.
- Over 12 year, not less than 12 weeks’ notice
There must be a breach of contract which is not justified by the employee’s repudiation of the contract (e.g. where notice is not given).
There must be a breach of contract which is not justified by the employee’s repudiation of the contract (e.g. where notice is not given). The two elements are:
- The most common wrongful dismissal claims that employees make is for breach of the notice period. That is termination without due notice. (no notice, or less notice than what is required in accordance with their contract);
- In circumstances where this lack of notice is not justified by the employee’s repudiation of the contract.
Wrongful Dismissal Case - Notice
In, SHOVE V DOWNS SURGICAL a claimant had worked for the company for 45 years. Was sacked while recovering from a serious illness without consultation or notice. His contract provided 30 months’ notice and he sued for wrongful dismissal.
Employers can dismiss employees before the end of their probationary period if:
Employers can dismiss employees before the end of their probationary period if:
Their performance during the probationary period has been unsatisfactory. I.e, that their behaviour was inconsistent, in a grave way, incompatible with the employment. (CASE: SINCLAIR V NEIGHBOUR)
They have committed gross misconduct, disobedience, or negligence.
Therefore, justification only exists if the Employee has repudiated (committed a fundamental breach of the contract.
Justification for wrongful dismissal?
Taking part in unofficial industrial action since this is breach of the employees’ fundamental duty to provide labour. They are not protected by statue.
Making Secret profits from employment, as in CASE: Boston Deep Sea Fishing Company V Ansell
Consistent un-cooperative conduct (Pepper V Webb) The employee acts in a way that the contract meant nothing to him.
Procedure for claiming wrongful dismissal?
The first task in any potential wrongful dismissal claim is to determine the notice period to which the employee is entitled. It is the greater of any period specified by the contract of employment and that provided is S86 ERA 1996.
Wrongful dismissal is a ‘day one right’.
There is no requirement for an employee to have a set period of continuous service to pursue a wrongful dismissal claim.
Wrongful dismissal claims must be brought at employment tribunal within three months (less a day) from the date of the employee’s termination.
However, an employee who is out of time to pursue a claim in the employment tribunal could still pursue a civil action as, in the civil court, an extended six-year limitation period applies.
Remedies available for wrongful dismissal?
The court will usually refuse to force the employer to re-employ the employee: to do so would infringe the voluntary nature of the contract and risk turning contracts of employment into contracts of slavery.
An injunction or order for specific performance may however be granted in certain circumstances:
Exclusive performance contracts may be supported by negative restraint clauses which prevent the artiste from working for any other employer:
Where there is no loss of trust and confidence between the employer and employee
The most common remedy for wrongful dismissal is damages:
The concept is based upon the normal principle of damages in contract law, the amount of money which would put the employee in the position which they would have been but for the breach of contract (before the breach occurred).
The employee is therefore entitled to claim money to cover losses which arise naturally in the ordinary course of things from the breach and any loss which it was reasonably foreseeable by the parties as likely to arise from the breach. CASE: Hadley V Baxedndale.
Such losses are calculated based on the benefits the employee would have enjoyed during the notice period. These include:
Arrears of wages due up to the date of dismissal (if these have not been paid by the employer)
Net wages or salary which would have been received during the notice period. CASE: British Transport Commission v Gourley
Damage to reputation CASE: Clayton V Oliver
Benefits which would have been received during the notice period. CASE: Manubens V Leon
Loss of wages: Normally damages will cover wages due up to the date of the wrongful dismissal plus the amount that would have been earned during the proper period of notice.
What remedies are excluded?
Compensation for injury to feelings or psychiatric illness associated with the dismissal.
Any loss caused by the employee’s failure to mitigate their own losses (Refusing alternative work)
Benefits received.
If there is no loss, there is no compensation. CASE: The Wise Group V Mitchell
Damages may be reduced if:
Damages may be reduced by the following:
The employee failing to mitigate their own loss. CASE: Yetton V Eastwoods
Tax that would have been paid had the money been received as wages. This is because the employee cannot receive more than their losses.
Other benefits received: sick pay, unemployment benefits and income support are deductible as is redundancy pay unless it can be shown that the employee would have been made redundant anyway. Compensation for loss of earnings is also deducted.
Benefits received under private insurance schemes are not, nor are any retirement pension payments.
By virtue of the Employment Tribunals (constitution and rules of procedure) regulations 2013, costs of up to £20,000 may be awarded against a party if he or his representative has acted vexatiously, abusively, disreputable, or other unreasonable or the bringing or conducting of the proceedings has been misconceived.
