wrongful and unfair dismissal

• Wrongful Dismissal


  Occurs when an employee dismisses an employee in a way which is in breach of the employee's contract of employment
• Wrongful Dismissal


  • Most common way is when an employee is dismissed without the requisite period of notice
  • Employees are entitled to notice unless guilty of gross misconduct
• Wrongful Dismissal


  • Different from Unfair Dismissal
  • Wrongful dismissal = when your employer breaches an employee's contract in dismissing you
  • A dismissal can be both wrongful and unfair, or wrongful but not unfair, or unfair but not wrongful
• Wrongful Dismissal Claim


  1. Establish that employee was dismissed in breach of contract or with less than statutory minimum notice period

  2. Employee has suffered loss as a result
• Wrongful Dismissal Claims


  • Can be brought in Employment Tribunal (£25,000 cap, 3 month time limit), County Court or High Court (6 year time limit)
  • Failure to follow contractual disciplinary procedure can amount to wrongful dismissal
• Unfair Dismissal


  Happens when employee is dismissed and employer doesn't have a valid reason and/or has acted unreasonably
• Statutory Dismissal Procedure


  1. Step 1: Write to employee notifying of allegations and invite to meeting

  2. Step 2: Inform employee of basis of allegation before meeting, employee has right to be accompanied, notify employee of decision

  3. Step 3: If employee wishes to appeal, hold appeal meeting, employee can be accompanied, inform employee of final decision
• Employment Rights (Northern Ireland) Order 1996


  • Provides employee right not to be unfairly dismissed
  • Employee can make unfair dismissal claim to Employment Tribunal if employed for 1 year (different to 2 year period in England and Wales)
• Pre-conditions of Unfair Dismissal Claim


  • Claimant was employed by respondent under contract of employment
  • Claimant was dismissed
  • Claimant was employed for necessary qualifying period (1 year in NI)
• Unfair Dismissal Requirements


  • Dismissal as outlined in s127 of Employment Rights (NI) Order 1996 - contract terminated by employer with/without notice, expiry of fixed term contract without renewal, employee terminates claiming constructive dismissal
• Termination by Employers


  • With or without notice
  • Counter Notice
  • Pressurised resignations
  • Expiry of fixed term contract without renewal
  • Constructive Dismissal
  • Statutory Maternity Rights
• Terminations which are NOT Dismissals


  • Frustration
  • Resignation
  • Consensual termination or mutual agreement
  • Performance
  • Operation of law
• Dismissal


  • If employer cannot prove valid reason, dismissal is automatically unfair
  • Employee entitled to written statement of reason for dismissal within 14 days if employed over 1 year
• Fair Reasons for Dismissal

  • Related to capability/qualifications of employee
  • Related to conduct of employee
  • Redundancy
  • Employee could no longer work in that position without contravening statutory provision
  • Some other substantial reason
• Automatically Unfair Reasons for Dismissal

  • Trade union membership/non-membership
  • Pregnancy and Maternity
  • Transfer of undertakings
  • Dismissal of striking employees
  • Assertion of statutory right
  • Rehabilitation of offenders
  • Sunday work
  • Sex, race and disability discrimination
  • Health and Safety
• Application to Tribunal


  Complaint for unfair dismissal must be lodged with Employment Tribunal within 3 months of effective date of termination
• Remedies


  • Reinstatement - employee returns to original job
  • Re-engagement - employee engaged in different but comparable job
  • Compensation