EMPLOYMENT LAW & PRACTICE
WRONGFUL DISMISSAL
Outcomes
By the end of this unit, you should be able to:
✓ Plan a letter of advice to a client in a wrongful dismissal context, explaining the
concept of constructive dismissal.
✓ Explain the basis on which wrongful dismissal damages are calculated.
✓ Identify, and explain the consequences of, commercially realistic options available to an
employee and employer when a repudiatory breach of contract has taken place or may
take place.
Unit Workshop Tasks
In this unit workshop you will
✓ Identify the legal and practical issues that need to be dealt with before drafting a letter
of advice to a client.
✓ Review the exercise you prepared on wrongful dismissal damages.
✓ Identify commercially realistic options available to an employee and employer when a
repudiatory breach of contract has taken place, or may take place, and advise a client on
the consequences of pursing those options.
Contents
Wrongful Dismissal (breach of contract) 2
Actual Dismissal Where there is a FIXED TERM Contract 3
Actual Dismissal of an INDEFINITE TERM contract 5
Dismissal for Employee’s breach – ‘summary dismissal’ 7
Constructive Dismissal 8
Employee’s Remedies for Wrongful Dismissal 10
Effect of Wrongful Dismissal on Restraint of Trade Clauses 13
Employer’s Remedies for an Employee’s Repudiatory Breach 13
Timelines for the Tribunal 14
not for resale or distribution
, EMPLOYMENT LAW & PRACTICE
Wrongful Dismissal (breach of contract)
(2.1.1 p97)
What is This is a common law contractual claim for breach of contract.
wrongful
dismissal? May be brought by:
- Workers; or
- Employees
Based solely on the fact that the dismissal by the employer was in breach of
contract.
The remedy is ‘damages’ for breach of contract.
Time Limits The Claim must be brought:
→ 3 months BACK PLUS A DAY from the date of dismissal.
→ Claim for breach of contract may also be brought before the civil courts
within 6 years of the dismissal (Limitation Act 1980, s5).
o There is no limit to the amount of damages recoverable in a court
action.
→ Note: £25k Cap on Damages in the Employment Tribunal (Employment
Tribunal’s Extension of Jurisdiction order 1994, Article 10).
Note: NO CONTINUOUS EMPLOYMENT RESTRICTION.
→ An employee is eligible to bring a claim of Wrongful Dismissal from Day
1.
→ NB:// always mention to the client
Has there → ACTUAL DISMISSAL
been a o The Employee’s FIXED TERM contract is terminated by the employer
dismissal? o The Employee’s contract is terminated by the employer
→ CONSTRUCTIVE DISMISSAL
o Where the employee resigns and can show that they were entitled
to do so by virtue of the employer’s (mis)conduct.
not for resale or distribution
, EMPLOYMENT LAW & PRACTICE
Actual Dismissal where there is a FIXED TERM Contract
(2.3.3 p98)
Is there → IF NO →
a break → The employee will have been wrongfully dismissed regardless of
clause in whether or not the employer gave notice.
the → UNLESS
contract ▪ The employee was in repudiatory breach of contract; or
? ▪ The parties agreed to terminate.
→ IF YES → and…
→ The clause contains AT → The clause contains LESS → The clause
LEAST the statutory than the statutory contains NO
minimum period of minimum period of NOTICE
notice. notice provision. PROVISION.
→ If the → If the → If the ❖ The → The employee
employe employee employee employee must be given
e was was NOT was was given the statutory
given given this nevertheles less than minimum
this notice. s given the period of notice
notice. MORE statutory AND
→ Wrongful THAN, the minimum
→ No dismissal statutory period. → The notice given
wrongfu minimum must be
l → UNLESS period → Wrongful reasonable. This
dismissa the AND dismissal. may not
l. employee necessarily be
was in a → This notice → UNLESS the same as the
repudiator was the statutory
y breach reasonable. employee minimum.
of was in
contract, → No repudiator → An employee’s
or the wrongful y breach seniority and
parties dismissal. of status and the
agreed to contract, employer’s
terminate. or the financial
parties position are
agreed to considered in
terminate. determining
what is a
reasonable
period of notice
Clark v
Fahrenheit 451
not for resale or distribution
WRONGFUL DISMISSAL
Outcomes
By the end of this unit, you should be able to:
✓ Plan a letter of advice to a client in a wrongful dismissal context, explaining the
concept of constructive dismissal.
✓ Explain the basis on which wrongful dismissal damages are calculated.
✓ Identify, and explain the consequences of, commercially realistic options available to an
employee and employer when a repudiatory breach of contract has taken place or may
take place.
Unit Workshop Tasks
In this unit workshop you will
✓ Identify the legal and practical issues that need to be dealt with before drafting a letter
of advice to a client.
✓ Review the exercise you prepared on wrongful dismissal damages.
✓ Identify commercially realistic options available to an employee and employer when a
repudiatory breach of contract has taken place, or may take place, and advise a client on
the consequences of pursing those options.
Contents
Wrongful Dismissal (breach of contract) 2
Actual Dismissal Where there is a FIXED TERM Contract 3
Actual Dismissal of an INDEFINITE TERM contract 5
Dismissal for Employee’s breach – ‘summary dismissal’ 7
Constructive Dismissal 8
Employee’s Remedies for Wrongful Dismissal 10
Effect of Wrongful Dismissal on Restraint of Trade Clauses 13
Employer’s Remedies for an Employee’s Repudiatory Breach 13
Timelines for the Tribunal 14
not for resale or distribution
, EMPLOYMENT LAW & PRACTICE
Wrongful Dismissal (breach of contract)
(2.1.1 p97)
What is This is a common law contractual claim for breach of contract.
wrongful
dismissal? May be brought by:
- Workers; or
- Employees
Based solely on the fact that the dismissal by the employer was in breach of
contract.
The remedy is ‘damages’ for breach of contract.
Time Limits The Claim must be brought:
→ 3 months BACK PLUS A DAY from the date of dismissal.
→ Claim for breach of contract may also be brought before the civil courts
within 6 years of the dismissal (Limitation Act 1980, s5).
o There is no limit to the amount of damages recoverable in a court
action.
→ Note: £25k Cap on Damages in the Employment Tribunal (Employment
Tribunal’s Extension of Jurisdiction order 1994, Article 10).
Note: NO CONTINUOUS EMPLOYMENT RESTRICTION.
→ An employee is eligible to bring a claim of Wrongful Dismissal from Day
1.
→ NB:// always mention to the client
Has there → ACTUAL DISMISSAL
been a o The Employee’s FIXED TERM contract is terminated by the employer
dismissal? o The Employee’s contract is terminated by the employer
→ CONSTRUCTIVE DISMISSAL
o Where the employee resigns and can show that they were entitled
to do so by virtue of the employer’s (mis)conduct.
not for resale or distribution
, EMPLOYMENT LAW & PRACTICE
Actual Dismissal where there is a FIXED TERM Contract
(2.3.3 p98)
Is there → IF NO →
a break → The employee will have been wrongfully dismissed regardless of
clause in whether or not the employer gave notice.
the → UNLESS
contract ▪ The employee was in repudiatory breach of contract; or
? ▪ The parties agreed to terminate.
→ IF YES → and…
→ The clause contains AT → The clause contains LESS → The clause
LEAST the statutory than the statutory contains NO
minimum period of minimum period of NOTICE
notice. notice provision. PROVISION.
→ If the → If the → If the ❖ The → The employee
employe employee employee employee must be given
e was was NOT was was given the statutory
given given this nevertheles less than minimum
this notice. s given the period of notice
notice. MORE statutory AND
→ Wrongful THAN, the minimum
→ No dismissal statutory period. → The notice given
wrongfu minimum must be
l → UNLESS period → Wrongful reasonable. This
dismissa the AND dismissal. may not
l. employee necessarily be
was in a → This notice → UNLESS the same as the
repudiator was the statutory
y breach reasonable. employee minimum.
of was in
contract, → No repudiator → An employee’s
or the wrongful y breach seniority and
parties dismissal. of status and the
agreed to contract, employer’s
terminate. or the financial
parties position are
agreed to considered in
terminate. determining
what is a
reasonable
period of notice
Clark v
Fahrenheit 451
not for resale or distribution
