I used these notes when revising Wrongful Dismissal for any problem question that could come up in the exam. They cover aspects such as whether a wrongful dismissal has taken place, and if so, the remedies that could be available.
WRONGFUL DISMISSAL
- With few exceptions, before 1971 employer could dismiss employee for any
reason or even no reason.
o Old ‘master and servant’ rules.
- One of only issues was when employee not allowed to serve notice then could
sue for breach of contract.
- Industrial Relations Act 1971 (since repealed) created action for unfair
dismissal.
- Replaced by Employment Protection (Consolidation) Act 1978.
- Replaced by as amended the Employment Rights Act 1996.
- Action for unfair dismissal now most common course for employees to take to
challenge dismissal.
- However still some circumstances where UD impossible or employee may gain
better remedy by claiming old common law contract breach action ie WD.
The nature of Wrongful Dismissal
- Traditionally three main situations in which common law damages arising from
breach of contract could occur:
o Employee dismissed without appropriate notice period being given (in
effect a summary dismissal that cannot be justified).
o Employee was employed under fixed term contract which was
terminated before expiry date of fixed term.
o Employee employed under contract which stipulated the only
circumstances under which dismissal could occur and the employer
dismissed the employee for some other reason.
- McClelland v Northern Ireland General Health Services 1957: C worked as
senior clerk for five years. Dismissed and given six months’ notice after rule
introduced that female officers required to resign on getting married. Argued
WD as contract stipulated that grounds for dismissal were gross misconduct
and inefficiency. Health Service argued that not wrongful since her contract
could also be terminated on reasonable notice. HL held WD since express
conditions in contract excluded any implied power to terminate on giving
reasonable notice.
- Hence WD is action for breach of contract and only concerned with form of
manner of dismissal and not with merits or fairness of it.
- Hence more black and white than UD.
- Would hardly benefit many employees since damages restricted for eg
remainder of notice period which would likely be minimal.
- BUT could be effective for three specific groups:
o Those on fixed term contracts dismissed before the end of the term.
o Very high paid employees such as executive directors where statutory
maximum for UD may mean more to gain from breach of contract claim
for WD.
Since Feb 2013, basic rate of compensation is £450 times
appropriate amount of service and ‘maximum compensatory
amount’ is £74,200, so employee’s wages during notice period
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