Although wrongful and unfair are two forms of dismissal that are very different, there is a relationship between the two that strongly links key concepts of employment law.
The main difference between these two claims is that wrongful dismissal is a contractual right and looks at whether there has been a breach of the employment contract. Unfair dismissal is an entirely different claim: a statutory right, the foundations of which are found in the Employment Rights Act 1996 (ERA 1996). This claim is not concerned with the employment contract; instead, it is concerned with the reason, procedure and facts of the dismissal and whether it constitutes fairness.
What constitutes Wrongful Dismissal?
The main situations that are most cited for constituting wrongful dismissal are:
An actual dismissal where the employer terminates the employee's employment contract. Legal professionals who specialise in employment claims would have to check the facts of the case against the contract and see whether the employee has been dismissed in line with the contract notice period or the statutory minimum notice period to which every employee is entitled.
An actual dismissal where the employer dismisses the employee's fixed-term contract. Legal professionals, once again, would have to check the contract and the facts of the case to establish whether there is a break clause within the contract that allows the employer to terminate the contract before the expiry date. If so, was this in line with the statutory minimum notice period?
A constructive dismissal where the employee has resigned due to a severe breach. A common situation where this could occur is where the employer has conducted themselves to make the employee feel they have had to leave the environment. The employer needs to have played a part/reason for the dismissal.
If any of the above applies to a scenario, there will be a wrongful claim as the dismissal has been made against the employment contract itself.
Remedies for Wrongful Dismissal
The standard contractual remedy of damages would be applicable in a wrongful dismissal scenario, the aim of which would be to put the employee in the position they would have been if the contract had been entirely correctly performed.
If this remedy were sought in the Employment Tribunal, a maximum of £25,000 could be claimed; however, if undertaken in the Civil Court, there is no cap on anything awarded to the dismissed employee.
What constitutes Unfair Dismissal?
There are five potential reasons for dismissal that could constitute unfairness, and they are found in s.98(1) and (2) of the ERA 1996. These are:
Capability
Conduct
Redundancy
Illegality
Some Other Substantial Reason (SOSR)
When looking at the dismissal and deciding whether it was fair, legal professionals will consider the employer's size, the employee's disciplinary record, and whether there have been sanctions given to the other employees previously who may have been in similar scenarios.
If the reason for the dismissal is related to either the conduct or capability, the employee's dismissal procedure will also be looked at in line with the Acas Code of Conduct.
Remedies for Unfair Dismissal
Three remedies can be sought for an unfair dismissal, two of which are different from a wrongful dismissal remedy: reinstatement, re-engagement, and compensation.
Compensation for unfair dismissal is split into two arms of the award, basic and compensatory. The primary distinction is a formula where age, gross weekly pay and length of service are considered. The compensatory award is where 52 weeks' gross income can be awarded maximum.
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