In this legal blog, we look at the different legal tests applicable between unfair dismissal and wrongful dismissal.
How does an employment tribunal look at unfair dismissal?
You must have at least two years’ service with your employer to have the right not to be “unfairly dismissed”. The meaning of unfair dismissal in set out in the law, that is the Employment Rights Act 1996 and the case law interpreting what is in the Act.
With an unfair dismissal claim, an employment tribunal will look at first whether the dismissal was for one of the potentially fair reasons that are set out in law, and then whether the employer acted reasonably in deciding that the reason it had was a sufficient reason for dismissing the employee.
Whether or not a dismissal was unfair will be decided by the tribunal by looking at fairness and the facts of the case. The legal test you will often see referred to is whether the dismissal fell within a “band of reasonable responses open to a reasonable employer”. This means that the employment tribunal is not entitled to substitute its own view on whether or not it would have dismissed the employee when coming to its decision on whether the dismissal was unfair.
The remedy for unfair dismissal is usually financial compensation for the loss of earnings, up to a statutory cap, plus what is known as a basic award. You could ask to return to your old job or another job with your old employer, but this rarely happens in practice.
In what way does wrongful dismissal differ from unfair dismissal
Wrongful dismissal is really a legal term for dismissal from a job without notice or notice pay, in breach of contract. Wrongful dismissal claims are, therefore, based on contract, whereas unfair dismissal claims are based on statute.
In a claim for wrongful dismissal, an employment tribunal will look to see whether there was a fundamental or repudiatory breach of the employment contract by the employee that justified the employer’s decision to dismiss without notice and so denying the employee notice pay and benefits. The employee making a claim for wrongful dismissal is essentially making a claim for contractual notice pay and benefits whereas unfair dismissal claims are based on statutory wrongdoing and involves claims for compensation for loss of earnings.
Employees are usually dismissed without notice where there was a gross misconduct. Often the gross misconduct employers rely on are set out in the disciplinary procedure. Whether an employee’s conduct amounted to a gross misconduct or a fundamental breach of contract is a question of fact, and is looked at from an objective point of view. Tribunals will look to see if the employee had committed the alleged misconduct, and if so whether that justified the dismissal without notice.
The band of reasonable responses test does not apply to wrongful dismissal claims. The claim is more to do with whether the conduct of the employee, when looked at by a reasonable unbiased person, was such that the employer was justified in dismissing the person without giving them their notice period or pay.
The remedy for wrongful dismissal is the pay and benefit the employee would have got for the notice period,
Remedy Solicitors are experts in employment law
This legal blog was written by Ashok Kanani, Principal at Remedy Solicitors. As a specialist employment law legal practice in London, we have expertise in advising on disciplinary or performance proceedings at work, grievances, dismissal, discrimination, bullying and harassment and settlement agreements. As specialist employment solicitors, our aim is to provide you with efficient, focused and cost effective solutions for your particular situation. For more information on our services visit our home page.