Many people might be unaware that there’s a difference between wrongful and unfair dismissal…
But there is.
Wrongful dismissal is where an employer has breached the terms of an employee’s contract, while unfair dismissal occurs when you were:
- Not given a fair reason for your dismissal
- Or not given enough reason to justify your dismissal
- Or not allowed a full and fair dismissal procedure
Ordinarily, wrongful dismissal relates to notice or notice pay and can include something such as not giving an employee the full notice period they’re entitled to as per the terms of their contract or dismissing an employee without giving them a notice period or notice pay.
Essentially, it’s where an employee’s contract of employment is terminated without the full terms of that contract being satisfied.
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Difference Between Unfair And Wrongful Dismissal
As we’ve alluded to, there is a different between unfair and wrongful dismissal.
That’s because unfair dismissal is where an employee was either not given a fair reason for their dismissal, there was not enough reason to justify their dismissal, or the employer did NOT follow a full and fair dismissal procedure.
Wrongful dismissal is a contractual right, while unfair dismissal is a statutory right under the Employment Rights Act 1996.
If you’re dismissed from your role as part of a disciplinary procedure, you MUST have a fair and proper process. And for it be considered fair, it must be done in writing and include:
- Any potential consequences
- And sufficient information about the alleged misconduct or performance issues
This is so that the employee has time to prepare for a disciplinary meeting, as well as protecting the employee, the employer, and the business.
The Acas Code of Practice on disciplinary and grievance procedures is the minimum standard that businesses are expected to adhere to, although they may have their own workplace policies that have differences to better reflect the requirements of your business.
While the Acas Code isn’t legislation, the reality is that if a disciplinary case goes to an employment tribunal, judges will consider whether an employer has followed the Acas Code fairly and reasonably.
This applies to anyone with employment status, although it’s advisable to follow the same procedures for all workers, whether they’re freelance, employed, a contractor, or any other classification of worker.
So, if you believe your employer HAS NOT followed the requisite guidance and standards with regards to a disciplinary procedure, this will ALSO factor into your wrongful dismissal claim.
Making A Wrongful Dismissal Claim
Crucially, a wrongful dismissal claim DOES NOT have any relation to fairness – this is a key difference between unfair dismissal and wrongful dismissal.
A wrongful dismissal claim might arise from actual dismissal or constructive dismissal, but if the case heads to an Employment Tribunal, then the main concern is going to be whether or not a breach of contract occurred.
There’s no requirement for a minimum period of employment to bring a wrongful dismissal claim to an Employment Tribunal, and an employer may rely on facts they found out after the matter in their justification.
This is the reality of why a dismissal can be judged to be wrongful but NOT unfair.
The usual process is for ACAS Early Conciliation to begin within three months of the termination of employment where it goes to County or High Court in Employment Tribunals. However, employees have as long as 6 years from the date of termination to bring a claim.
If you’re looking to make a claim for unfair OR wrongful dismissal, it’s crucial that you speak to a legal expert as soon as possible. That might be a union representative, someone from the Citizen’s Advice Bureau, or a solicitor, but the important thing is that you act quickly and decisively.
Wrongful Or Unfair Dismissal Solicitors Near Me
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