Employment claims – pg 244 RG
Claim Basis Awards
Wrongful Common law claim based on fact the contract has been terminated in a manner Damages for breach of
dismissal which is breach of contract. contract.
(breach of Aiming to put employee back
contract) Dismissed either: in position he would have
Without due notice (normally on an indefinite term contract: or been in if contract not
Before guaranteed term ends (fixed term contract – check for break broken.
clauses) In HIGH COURT, CC or
employment tribunal
NOTICE – usually agreed in the contract and where he gives no notice or short (restriction of 25,000 – courts
notice then he is in breach. are unlimited.)
- If the expressly agreed one is shorter than statutory minimum (1 week
notice after 1 month continuous employment and 2 weeks’ notice after 2 Indefinite = start point is net
years and thereafter one additional week notice for each year up to max of salary they would have
12 weeks) of s86 ERA 96 then the longer statutory period of notice must be earned during the proper
given. notice
- In the absence of a notice period – implied term the employee entitled to
reasonable notice which is fact based. Page 466. Fixed term = net salary for
remainder of the fixed term.
Repudiatory breach by EMPLOYER of express or implied term:
- Employee can treat contract as discharged. - They may claim for
- Employee entitled to leave with or without notice loss of other
- Can bring claim of WD benefits for the
- He has been constructively dismissed in breach of contract – but he must relevant period.
leave in reasonable time or taken to affirm the contract. - Normally pecuniary
- WHERE employer alters the contract or breaks implied duty of good faith. loss only.
Employee required to
Repudiatory breach of E or I term by EMPLOYEE = employer defence: MITIGATE loss: e.g., look for
- Did the employee fail to carry out his duties as a director? jobs
- Did he reveal confidential information or wilfully disobey the employer’s
lawful order or serious misconduct? Payment made in lieu of
- If they had summarily dismissed him then they would not be able to defend notice is deducted from
the claim. damages.
May potentially need more information about what the director has done.
[If employer breach, can’t
Does not apply where: enforce post-termination
- Employee resigns and is considered to have terminated the contract and clauses]
without notice has breached contract.
If the company managed to
successfully defend the
wrongful dismissal claim,
then he would be bound.
Unfair Section 94 ERA 1994 – employees have a right not to be unfairly dismissed. Bring Page 469
dismissal claim at employment tribunal.
(ERA) Basic award AND
‘Qualifying employee’ + 2 full years’ service + dismissed (actual or constructive)
page 467. Employee final gross week’s
pay (max 538) X by
Burden of proof then moves to employer: - Length of service
- CCRIS ‘fair’ reason (5) (capability, conduct, redundant, contravention of up to 20 years
statute, other substantial reason). - By multiplier of 1 ½
+ how it acted reasonably in dismissing for that reason (employment tribunal (over 41), 1 (41-22)
decide this). or ½ (under 22).
- Employee wins if they cannot show one of the reasons or tribunal believes
it was unreasonable. Like 16 x 1 ½ x 538
Different options are: Compensatory
S.98(2) dismissal was potentially fair reason: award.
Amount tribunal considers
S.98(2)(b) – Conduct just and equitable regarding
- What was he doing at work? Outside of work if it had direct relation the loss. Max 88,159.
- For (4) there should be thorough investigation and allow them to state their case. - Immediate loss of
- Not dismiss unless the misconduct is gross or persistent. wages from
dismissal to hearing
S.98(2)(a) Capability? - Future loss by how
Claim Basis Awards
Wrongful Common law claim based on fact the contract has been terminated in a manner Damages for breach of
dismissal which is breach of contract. contract.
(breach of Aiming to put employee back
contract) Dismissed either: in position he would have
Without due notice (normally on an indefinite term contract: or been in if contract not
Before guaranteed term ends (fixed term contract – check for break broken.
clauses) In HIGH COURT, CC or
employment tribunal
NOTICE – usually agreed in the contract and where he gives no notice or short (restriction of 25,000 – courts
notice then he is in breach. are unlimited.)
- If the expressly agreed one is shorter than statutory minimum (1 week
notice after 1 month continuous employment and 2 weeks’ notice after 2 Indefinite = start point is net
years and thereafter one additional week notice for each year up to max of salary they would have
12 weeks) of s86 ERA 96 then the longer statutory period of notice must be earned during the proper
given. notice
- In the absence of a notice period – implied term the employee entitled to
reasonable notice which is fact based. Page 466. Fixed term = net salary for
remainder of the fixed term.
Repudiatory breach by EMPLOYER of express or implied term:
- Employee can treat contract as discharged. - They may claim for
- Employee entitled to leave with or without notice loss of other
- Can bring claim of WD benefits for the
- He has been constructively dismissed in breach of contract – but he must relevant period.
leave in reasonable time or taken to affirm the contract. - Normally pecuniary
- WHERE employer alters the contract or breaks implied duty of good faith. loss only.
Employee required to
Repudiatory breach of E or I term by EMPLOYEE = employer defence: MITIGATE loss: e.g., look for
- Did the employee fail to carry out his duties as a director? jobs
- Did he reveal confidential information or wilfully disobey the employer’s
lawful order or serious misconduct? Payment made in lieu of
- If they had summarily dismissed him then they would not be able to defend notice is deducted from
the claim. damages.
May potentially need more information about what the director has done.
[If employer breach, can’t
Does not apply where: enforce post-termination
- Employee resigns and is considered to have terminated the contract and clauses]
without notice has breached contract.
If the company managed to
successfully defend the
wrongful dismissal claim,
then he would be bound.
Unfair Section 94 ERA 1994 – employees have a right not to be unfairly dismissed. Bring Page 469
dismissal claim at employment tribunal.
(ERA) Basic award AND
‘Qualifying employee’ + 2 full years’ service + dismissed (actual or constructive)
page 467. Employee final gross week’s
pay (max 538) X by
Burden of proof then moves to employer: - Length of service
- CCRIS ‘fair’ reason (5) (capability, conduct, redundant, contravention of up to 20 years
statute, other substantial reason). - By multiplier of 1 ½
+ how it acted reasonably in dismissing for that reason (employment tribunal (over 41), 1 (41-22)
decide this). or ½ (under 22).
- Employee wins if they cannot show one of the reasons or tribunal believes
it was unreasonable. Like 16 x 1 ½ x 538
Different options are: Compensatory
S.98(2) dismissal was potentially fair reason: award.
Amount tribunal considers
S.98(2)(b) – Conduct just and equitable regarding
- What was he doing at work? Outside of work if it had direct relation the loss. Max 88,159.
- For (4) there should be thorough investigation and allow them to state their case. - Immediate loss of
- Not dismiss unless the misconduct is gross or persistent. wages from
dismissal to hearing
S.98(2)(a) Capability? - Future loss by how
