Wrongful Dismissal: Has Your Employer Made a Big Mistake?
Do you feel your employer has wrongfully dismissed you? Are you unsure where you stand in the eyes of the law? Do often complex legal regulations leave you scratching your head in befuddlement?
If you’re nodding unhappily, it’s time to find some answers.
What is Wrongful Dismissal?
When an employer dismisses you by not giving the notice of termination outlined in your employment contract, this is considered wrongful dismissal. Employment contracts needn’t only in be in writing, however – they can also be oral.
Importantly, the test for succeeding in a wrongful dismissal claim is different from the test in an unfair dismissal claim, which is why you should be armed with the appropriate information to make sure you know your rights.
Test for Wrongful Dismissal
For wrongful dismissal claims, a tribunal will decide whether you did actually carry out the acts claimed by your employer, and whether these actions warranted your employer dismissing you without notice or pay in lieu of notice.
However, it’s up to your employer to show, on the balance of probabilities, that you were guilty of the supposed misconduct. Put simply, your employer’s reasonable belief in your guilt is neither here nor there – they must establish on the balance of probabilities test that you committed the alleged misconduct.
It’s crucial to note, though, that when it comes to a wrongful dismissal claim in a tribunal, it only has the jurisdiction to hear claims up to £25,000, so if you’re claiming more than this amount, you can always bring your claim in the courts.
Test for Unfair Dismissal
Claiming unfair dismissal is a right given by legislation. When it comes to unfair dismissal, then, things are slightly different.
The tribunal won’t decide whether you were actually guilty of the alleged misconduct. Instead, the test is whether your employer’s decision to dismiss you was within a range of reasonable responses available to a reasonable employer as a reaction to the misconduct.
The test is an objective one, which focuses on the decision of your employer.
When applying this test for unfair dismissal, it’s extremely important the tribunal does not substitute its own view for that of your employer, with the tribunal striving to determine ...
- Whether your employer genuinely believed you were guilty of the misconduct
- Whether your employer had reasonable grounds on which to form that belief
- Whether in arriving at (a) and (b), your employer had carried out as much investigation as was reasonable
If the tribunal decides these factors in your employer’s favour, your employer’s decision to dismiss you will be upheld as fair, as it’s within the band of reasonable options open to your employer – even if the tribunal feel the decision to dismiss you was harsh.
Beware of Legal Loopholes
Indeed, there’s much more to wrongful dismissal than meets the eye.
For instance, if your employer has unjustifiably dismissed you with immediate effect and without making a payment in lieu of notice, but later learns something which would have entitled them to terminate the employment without notice, they can use this to avoid paying you the salary which would otherwise have been owed.
To illustrate this, take the case of Williams v. Leeds United Football Club [2015 EWHC 376 (QB) ...
In short, Mr Williams was entitled to 12 months’ notice of termination under his employment contract with Leeds United Football Club. The club ended his employment at once, without notice, and without paying him in lieu of notice.
Due to the club refusing to pay Mr Williams for his notice period, he brought a claim for wrongful dismissal. However, the court held the club was entitled to rely on Mr Williams’ gross misconduct, which the club had only discovered after the sacking, in order to defeat his claim.
The gross misconduct, which happened five years before Mr Williams was dismissed in 2013, involved Mr Williams using the club’s email system to send pornographic images to a junior female employee at Leeds United and two footballer friends at other clubs.
In fact, the club was entitled to rely on this even though it had calculatingly set out to find a reason to circumvent paying Mr Williams anything for the notice period.
How Ashby Cohen Can Help
As you can see, it’s vital for all unfair dismissal cases to establish the reason for dismissal.
Indeed, any misconduct prior to your dismissal, which your employer only found out about after your dismissal, clearly was not in their mind when you were relieved of your duties. Consequently, it’s not a factor when deciding whether your dismissal was fair or not.
However, it can be taken into account by the tribunal when determining the amount of compensation – and it may even reduce any compensation to nil.
If you’d like more information about wrongful dismissal or bringing an unfair dismissal claim against your employer, please don’t hesitate to get in touch with a member of the Ashby Cohen team today for your free initial consultation.