wrongful dismissal
📖 What is wrongful dismissal? Meaning and definition
Wrongful dismissal is a type of claim brought by an employee against their employer, asserting that the employer has breached the terms of their employment contract. A common basis for such a claim is the employer's failure to provide the correct notice period or pay in lieu of notice, as stipulated in the contract. For instance, if an employee is dismissed without receiving the notice pay they are contractually entitled to, this can constitute wrongful dismissal.
It is distinct from unfair dismissal, though both claims can sometimes be pursued together. While unfair dismissal focuses on whether the employer acted reasonably in dismissing the employee, wrongful dismissal specifically examines whether the contractual terms, particularly regarding notice, were upheld. The Employment Tribunal can hear claims for damages related to wrongful dismissal, especially concerning unpaid notice pay.
However, an employee's own conduct can impact a wrongful dismissal claim. If an employee's conduct fundamentally breaches the contract of employment, the employer might argue there was no entitlement to notice pay, thereby defending against a wrongful dismissal claim. The legality of the contractual arrangements, such as undeclared earnings, can also be a factor, with courts considering the seriousness and connection of any illegality to the claim.
📋 Requirements
- A contract of employment exists between the parties.
- The employer dismissed the employee.
- The employer failed to provide the contractually agreed notice period or pay in lieu of notice.
- The employee's conduct did not fundamentally breach the contract of employment, negating their entitlement to notice pay.
📝 Procedure
- The claimant brings a claim of wrongful dismissal against the respondent.
- The respondent defends the claim, potentially arguing that the claimant's conduct fundamentally breached the contract.
- The Employment Tribunal determines whether the claim of wrongful dismissal (i.e., breach of contract for unpaid notice pay) is well-founded.
- If the claim is well-founded, the Tribunal awards damages to the claimant.
💡 Examples
- An employee was dismissed without receiving the three months' notice pay specified in their employment contract, leading to a claim for wrongful dismissal.
- A claimant pursued both unfair and wrongful dismissal claims after their employer ended their contract, arguing they were not given proper notice.
- An Employment Tribunal ruled in favour of a claimant, finding their wrongful dismissal claim for unpaid notice pay was valid, and ordered the employer to pay damages.
- A claim for wrongful dismissal was rejected because the employee's admitted conduct was deemed a fundamental breach of their employment contract, justifying dismissal without notice pay.
📚 Legal basis
- Employment Tribunals Rules of Procedure 2024
- Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994
- The Employment Tribunals (Interest) Order 1990
❓ Frequently asked questions
What is the difference between wrongful dismissal and unfair dismissal?
Wrongful dismissal focuses on whether your employer breached the terms of your employment contract, typically regarding notice pay. Unfair dismissal, on the other hand, considers whether your employer acted reasonably in dismissing you, regardless of contractual notice.
Can I claim for wrongful dismissal if I was dismissed for misconduct?
If your misconduct is considered a fundamental breach of your employment contract, your employer might argue that they were entitled to dismiss you without notice pay, which could impact your wrongful dismissal claim. The Tribunal would assess the seriousness of your conduct.
What kind of compensation can I get for wrongful dismissal?
If your claim for wrongful dismissal is successful, you can be awarded damages, which typically cover the unpaid notice pay you were contractually entitled to. The Employment Tribunal will determine the specific sum.
Does previous undeclared earnings affect a wrongful dismissal claim?
The courts have considered that previous undeclared earnings, even if illegal, do not automatically prevent an employee from pursuing a wrongful dismissal claim. Factors like the seriousness and duration of the illegality, and its connection to the claim, are taken into account.
How do I start a wrongful dismissal claim?
You would typically bring a claim to an Employment Tribunal. It is advisable to seek guidance from a qualified solicitor to understand the process and your specific entitlements.
Is wrongful dismissal always about notice pay?
While wrongful dismissal commonly relates to unpaid notice pay, it fundamentally concerns any breach of the employment contract by the employer during dismissal. However, the cases often highlight notice pay as a primary component.