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Wrongful dismissal (Difference (wrongful dismissal is a common law action…
Wrongful dismissal
Difference
- wrongful dismissal is a common law action for breach of contract.
- Unfair dismissal is solely the creature of a statute
- in a wrongful dismissal claim, the tribunal or court is not concerned with the reasonableness of the dismissal;
- in an unfair dismissal claim, the function of the tribunal is to consider the fairness of the dismissal
Certain groups cannot rely upon Unfair Dismissal; this is done for reasons of practicality, for example:
- Members of the armed forces, members of the police service, employees working for government departments where a national security certificate has been issued, share fishermen.
- Employees who are working under illegal contracts.
- when defending a wrongful dismissal claim, an employer may rely on fact that they found out after the dismissal
- in an unfair dismissal claim, the only question is whether the dismissal was fair on the basis of what the employer knew at the time
NOTICE PERIODS
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- whee there is an express notice period in the contract, it will operate subject to the statutory min notice as per section 8 of ERA
if there is no express notice, a minimum period of notice will be implied into the contract
minimum notice periods:
- at least one week's notice for employees with continuous employment of at least one month but less than 2 year;
- up to a max of 12 weeks notice for employees with 2 years' continuous employment or more. They are entitled to one week's notice for each complete year
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CONTRACTUAL PROCEDURES
employee can claim for the loss of wages for the period of time that the procedure would have taken had it been followed Gunton v Richmond upon Thames
Raspin v United News Shops Ltd
Damages for wrongful dismissal may in principle include damages in respect of an employee's loss of the opportunity to bring an unfair dismissal complaint.
Application
This is where you break the terms of an employee’s contract in the dismissal process, eg dismissing someone without giving them proper notice.
FIXED-TERM CONTRACTS
if the employer is in breach, he will have to pay for the entirety of the rest of the term, unless there is a provision within the contract for notice of early termination