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Wrongful and Unfair Dismissal
Most people's employment ends amicably and no claim is made against the employer. However, if an employee feels aggrieved, they may have grounds to start proceedings either in the Employment Tribunal or the Court.
If you are an employee and feel you have been badly treated, give us a call or take a look at our employees page, which explains how we can help.
If you are an employer, it is obviously in your interests to avoid these types of claim. In order to do so, you need to have in place, up to date disciplinary and grievance procedures. It is also well worth taking legal advice before dismissing anybody. Please see our employers page for more information.
Here are some useful definitions of common terms:
WRONGFUL DISMISSAL is a dismissal in breach of the employment contract. Fairness is not an issue; the only question is whether the terms of the contract (which can be express or implied) have been breached. The employee will have a claim in damages if the employer, in dismissing them, breached the contract, and caused them loss.
UNFAIR DISMISSAL is a statutory claim governed by the Employment Rights Act 1996. This Act states that an employer who dismisses a qualifying employee will be vulnerable to a claim for unfair dismissal in the employment tribunal unless:
It can show a potentially fair reason for the dismissal (There are five potentially fair reasons); and
The Tribunal finds that the employer acted reasonably in treating that reason as sufficient to justify dismissal This has been interpreted by the courts and tribunals as meaning that the dismissal must be procedurally fair.
If an employment tribunal finds that the dismissal is unfair, it can order the employer to re-engage or reinstate the employee or (as is more likely in practice) pay the employee compensation.
CONSTRUCTIVE DISMISSAL occurs where the employer does not dismiss the employee, but they resign and can show that they were entitled to do so by virtue of the employer's conduct. The employer's conduct in such cases is a fundamental breach of contract. A constructive dismissal may be an unfair dismissal and/or a wrongful dismissal.
Please email Richard Stephens to make an appointment or call 020 8370 2875