Wrongful dismissal is where an employer has breached the terms of an employee’s contract.
Ordinarily, this relates to notice or notice pay and can include something such as not giving an employee the full notice period they’re entitled to as per the terms of their contract or dismissing an employee without giving them a notice period or notice pay.
In essence, it’s where an employee’s contract of employment is terminated without the full terms of that contract being satisfied.
What Is Wrongful Dismissal
We’ve outlined the technical definition of wrongful dismissal, but it’s worth knowing that it can manifest itself in many different ways.
It’s also worth being aware that it does NOT matter how long you’ve been employed when it comes to making a wrongful dismissal claim.
If you think you might have a case for wrongful dismissal, you should speak to a legal expert as soon as possible to ensure that you get legal advice on how best to proceed.
Crucially, wrongful dismissal differs from unfair dismissal.
Unfair dismissal is a case where an employee was either not given a fair reason for their dismissal, there was not enough reason to justify their dismissal, or the employer did NOT follow a full and fair dismissal procedure.
What Happens Next With Wrongful Dismissal?
If your dismissal has formed part of a disciplinary procedure, then you should ensure that the process was followed fairly and properly.
For it to be considered a fair process, it must be done in writing, and needs to include:
- Potential consequences
- And sufficient information about the alleged misconduct or performance issues
This is so that the employee has time to prepare for a disciplinary meeting, as well as protecting the employee, the employer, and the business.
The ACAS Code of Practice on disciplinary and grievance procedures is the minimum standard that businesses are expected to adhere to. Although they may have their own workplace policies that have differences to better reflect the requirements of your business.
While the ACAS Code isn’t legislation, the reality is that if a disciplinary case goes to an employment tribunal, judges will consider whether an employer has followed the ACAS Code fairly and reasonably.
This applies to anyone with employment status, although it’s advisable to follow the same procedures for all workers, whether they’re freelance, employed, a contractor, or any other classification of worker.
So, if you believe your employer HAS NOT followed the requisite guidance and standards with regards to a disciplinary procedure, this will ALSO factor into your wrongful dismissal claim.
Making A Wrongful Dismissal Claim
Crucially, a wrongful dismissal claim DOES NOT have any relation to fairness – this is a key difference between unfair dismissal and wrongful dismissal.
A wrongful dismissal claim might arise from actual dismissal or constructive dismissal, but if the case heads to an Employment Tribunal, then the main concern is going to be whether or not a breach of contract occurred.
There’s no requirement for a minimum period of employment to bring a wrongful dismissal claim to an Employment Tribunal, and an employer may rely on facts they found out after the matter in their justification.
This is the reality of why a dismissal can be judged to be wrongful but NOT unfair.
The usual process is for ACAS Early Conciliation to begin within three months of the termination of employment where it goes to County or High Court in Employment Tribunals. However, employees have as long as 6 years from the date of termination to bring a claim.
In terms of compensation, the rule is that it will be capped at the notice period – i.e. the maximum compensation will be in line with the maximum period it would have taken to complete the contractual procedure.
Compensation for wrongful dismissal will include the net value of salary and contractual benefits to the employee, so essentially all of the benefits and salary you WOULD have received had you been allowed to work your notice period as agreed in your employment contract.
This figure is capped at £25,000 in an Employment Tribunal, but there is no cap on the award in County or High Courts.
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