Wrongful dismissal can be defined as dismissal without notice, which leads to a claim for damages.
For example someone with a contractual notice period of 3 months who is asked to leave immediately without payment in lieu of notice has a potential claim for wrongful dismissal. In order to defend such actions the employer will have to prove the dismissal was justified. Reasons for this may include:
·Wilful disobedience
·Dishonesty
·Incompetence
·Drunkenness
·Misconduct
When making a claim for wrongful dismissal the claimant must take all reasonable steps to mitigate their losses by say seeking alternative employment.
Unfair dismissal occurs when a qualifying employee is dismissed without a fair reason.
In order to qualify usually the claimant has to prove they were:
·Continuously employed for at least one year (or 2 years for employees hired after 6th April 2012)
·Dismissed
·Under normal retirement age
The one year criterion does not, however, apply where someone has been dismissed for an ‘automatically unfair’ reason such as membership of a trade union or being pregnant.
The claimant has three months to file a claim with the employment tribunal at which the employer will have to prove they had one or more of the following ‘fair’ reasons to have dismissed the claimant:
·Lack of capability/qualification
·Gross misconduct
·Statutory prohibition
·Redundancy
·Other substantial reason
A successful claim for unfair dismissal will lead to one of the following remedies:
·Reinstatement – getting your old job back
·Re-engagement – new employment with the old employer
·Compensation – consisting of the basic, compensatory and punitive awards |
