Being dismissed from your job can be a distressing experience – and even more so when the dismissal feels unfair or unjust. Where the dismissal breaches the terms of the employment contract, or by their/its actions, the employer shows that they no longer wish to be bound by the terms and conditions within the contract, the individual may be able to claim wrongful dismissal; usually in relation to a potential ‘constructive dismissal’ claim.
Let’s take a look at what wrongful dismissal actually means, and what options are available to you whether you’ve worked for your employer for many years or just a short period of time.
What is wrongful dismissal?
Wrongful dismissal is a breach of contract by your employer. In its purest form, it usually is a termination of the contract without the giving of contractual notice. However, this is often negated by the fact that many contracts – especially those for more senior employees, have specific clauses to allow notice to be dispensed with – the ‘payment in lieu of notice’. Just to complicate matters further (us lawyers love to do this), making a payment in lieu of notice where no such clause is contained in the contract would itself be a breach of contract, the ramifications of which could be significant.
Another example of wrongful dismissal could be where the employer has summarily dismissed for gross misconduct when the employee has not, in fact, committed such an act. Of course, this is a question of interpretation.
Standalone claims for wrongful dismissal are rare. Such claims are usually added on to an unfair dismissal claim or form part of a ‘constructive dismissal’ claim which, in turn, is often converted into a ‘constructive unfair dismissal’ claim. These are claims whereby the employer has acted so poorly that the employee may resign claiming a breach of the employment contract.
The terminology can, therefore, get somewhat complicated. We have seen what a wrongful dismissal looks like, so let’s compare that to an ‘unfair dismissal’.
An unfair dismissal is a creature of statute. It occurs where an employer has dismissed an employee without having the grounds to do so or has failed to follow a set of minimum standards. To further muddy the water, there is little or no law governing this behaviour and employment tribunals have to have regard to sets of ‘codes of practice’, issued by third parties, such as ACAS. What is normally clear is that the employee needs to have a minimum length of continuous service; currently two years – although the Government are thinking of reducing this.
Wherever possible, the unfair dismissal route is preferable to that of wrongful dismissal for a number of reasons:
- The remedy for wrongful dismissal is the normal notice period. The notice period being the amount an employee would have been paid if the contract had been terminated correctly. This may be far less than the amount payable under an unfair claim.
- The recovery of such notice period is limited to £25,000 in the employment tribunal.
- The onus of proof changes in wrongful claims and this is important. In an unfair dismissal it is up to the employer to prove they did NOT unfairly dismiss. In wrongful claims the onus is on the employee to prove the employer was in breach of contract, and this is much harder.
In turn, there may be occasions where a wrongful dismissal claim may be preferable:
- Where the employee does not have two years’ continuous service.
- Where the value of the claim is high and may exceed the current limits for unfair dismissal, £118,223.
- Where three months has passed and a county or high court claim is more appropriate (employees can claim up to six years’ later).
What to do if you think you’ve been wrongfully dismissed
If you think your employer has breached contract in your dismissal, the first thing to do is to actually check your contract. Review it carefully to understand your notice entitlement and any other relevant terms, and to ascertain whether it has been followed or not.
Gather as much evidence as you can of the wrongful dismissal, such as your contract, payslips, and any communication relating to your dismissal.
Next, get some expert advice. The best thing to do is to contact an employment law solicitor for advice about your rights and specific situation, as well the best steps to take. Every dismissal is different, and the most important first step is understanding whether you actually have a claim or not. An experienced employment law expert is best placed to give you advice.
You may be able to appeal your dismissal directly with your employer. If you can’t, or you are unsuccessful, you can get in touch with Acas (the Advisory, Conciliation and Arbitration Service) to begin a process called early conciliation, which is designed to try to resolve disputes before going to an employment tribunal. Be aware that you will need to have contacted Acas less than three months after being dismissed if you intend to make a tribunal claim.
To get expert legal advice about wrongful dismissal, contact Amicus Law today.