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Claims for Wrongful Dismissal

By: Lorna Elliott LLB (hons), Barrister - Updated: 9 Mar 2010 |
 
Wrongful Dismissal Breach Contract Claim

Wrongful dismissal is distinct from unfair dismissal, as wrongful dismissal is a claim based on contract law. These types of claims involve looking at the terms and conditions of an employee’s contract in order to see whether there has been a breach of contract. Usually, claims for wrongful dismissal arise when an employer has provided insufficient notice, or no notice, of the termination of an employee’s contract of employment.

Summary Dismissal

A claim for wrongful dismissal will not be an appropriate remedy in all circumstances. Where the employer has just reason to do so, an employee can be summarily dismissed (without notice being given) if they commit a serious breach of contract. This may be, for example, theft, or another criminal offence.

There is no requirement on the part of the employer to prove that the theft has taken place, but may summarily dismiss an employee on the grounds of suspicion only. Similarly, if the employer commits a serious breach of contract, the employee is entitled to resign without providing the proper notice period. Be careful with this, however, and seek legal advice if you are not sure. You can either accept that there has been a breach of contract, or resign. If you accept the breach, you may be entitled to compensation. Serious breaches by an employer include:

  • harassment
  • not paying the employee’s wages or salary
  • making false allegations of misconduct
  • changing the terms of employment
  • making a major change to the employee’s work location, without providing notice
  • any other act that undermines the trust and confidence between an employer and an employee
  • Where you have been forced to resign or face dismissal by an employer, you can still bring a claim for wrongful or unfair dismissal.

If an employer has a disciplinary procedure that it is obliged to follow under the terms and conditions of the employee’s contract, then it may be possible to claim for wrongful dismissal on this basis. Claims for wrongful dismissal can be brought in several courts: the employment tribunal, the county court, or the high court. The appropriate venue will however depend on the value of the claim.

Minimum Notice Periods

Although claims for wrongful dismissal are contract-based, the law provides minimum notice periods that employees must be given before termination of an employment contract. These are:

  • Less than one month – no notice required
  • More than one month – one weeks’ notice
  • Two years – 2 weeks’ notice
  • Three years – 3 weeks’ notice
  • Four years – 4 weeks’ notice
  • Five years – 5 weeks’ notice
  • Six years – 6 weeks’ notice

An extra week’s notice is required for each extra year served in employment, up to a maximum of twelve weeks’ notice for twelve years’ employment. This is the maximum amount required by law, and anyone who has worked for an employer for more than this period is also required to be given twelve weeks’ notice. It is possible, if both parties agree, to waive these rights.

Damages for Wrongful Dismissal Claims

As well as being able to claim for unpaid wages, and the correct notice period, an employee may also receive damages for the following:

  • holiday pay
  • commission
  • any loss to pension
  • access to private healthcare
  • access to company car

It will be for the court to determine the actual award that should be paid depending on the circumstances of each individual case.

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