Claims for wrongful dismissal are based upon the employment contract and will allege breach of the contract of employment. An action can be brought either in the county court or before an employment tribunal and is based on contract law.Probably the most common breaches are dismissal from employment without notice or where the notice period given is too short. Failure by an employer to follow a contractual disciplinary procedure can also be wrongful dismissal.
An employer may, however, justify dismissing an employee without notice where there has been a serious breach of the contract, for example theft by the employee. The employer does not have to have absolute proof of the theft, genuine and reasonable suspicion is enough.
Where an employer breaches the contract, the employee may accept the breach and continue working or resign. In either case, compensation may be sought.
Examples of breaches of contract by an employer have been held to be anything which destroys the goodwill and goes against the mutual trust and confidence necessary between employer and employee such as:
• false allegations of misconduct;
• harassing the employee;
• not paying wages / salary;
• changing an employee’s job or terms of employment;
• changing the employee’s work location without notice (if it is a major change).
The wrongful dismissal claim will usually be for damages designed to put the employee in the same position that they would have been in if the contract had not been breached by the employer. This normally includes the correct amount of money for the correct notice period. It can also include any wages / salary that have not been paid including damages for loss of perks, holiday pay, commissions, and loss of pension rights.
If an employee resigns, they must give the proper notice as set out in their contract of employment. If they do not have a contract or a notice period is not set out in the contract, the employee must give the statutory minimum of one weeks’ notice.
An employee is, however, entitled to resign without notice where the employer commits a serious breach of the employment contract, such as would make further employment impossible.
Where an employment contract stipulates a disciplinary procedure which is not complied with, then the employee may claim payment for the length of time that the disciplinary procedure would have taken if it had been used.
The Employment Rights Act 1996 provides that an employee who has been employed for more than 12 months has the right not to be unfairly dismissed.
- Some dismissals which breach statutory rights are automatically unfair such as pregnancy dismissals;
- dismissal in connection with parental leave;
- dismissal in connection with time off for dependents;
- dismissal in connection with working time;
- health and safety dismissals;
- dismissal for assertion of a statutory right;
- unfair selection for redundancy;
- dismissal for trade union membership and activities;
- dismissal in connection with a transfer of an undertaking;
- dismissal in connection with the right to the minimum wage.
- redundancy; but see the section on redundancy
- incapacity (covering both illness and inability);
- to avoid unlawful activity (e.g. loss of driving licence);
- corruption, including taking bribes;
- being drunk at work;
- taking drugs at work;
- abusive behaviour;
- leaking confidential documents or information;
- hacking into computer files – this includes stealing passwords;
- being absent from work on a regular basis;
- being constantly late for work;
- wearing unsuitable work clothes or bad appearance;
- taking holidays without informing the employer;
- unsuitable conduct with other members of staff during office hours;
- unsuitable conduct outside work hours that has an impact on the employer;
- insulting behaviour towards employer.
All of the above may be persistent behaviour for which an employee has received earlier warnings or they may be individual incidents that are of a serious nature.
The right to claim unfair dismissal does not apply to those subject to the following exclusions:
- the armed forces;
- exclusions by agreement;
- diplomatic immunity;
- industrial action;
- national security;
- normal retirement age;
- share fishermen;
- state immunity;
- those working abroad.
The first burden on an employee alleging that he was unfairly dismissed is to show that there was in fact a dismissal.
Even where the dismissal is potentially fair, the employer is obliged to thoroughly investigate and deal with the dismissal fairly and in accordance with proper procedures. Thus, a dismissal which might have been considered fair can be rendered unfair, if not properly and fairly investigated.
In order to qualify to claim unfair dismissal, an employee must normally have been continuously employed for 12 months at the date of dismissal. However, there are exceptions to this rule, such as claims based on dismissals for ‘asserting a statutory right’ or for whistle blowing.
All claims for unfair dismissal must be brought to an industrial tribunal within 3 months.