31/08/2010 11:54:11
www.clicklegalservices.co.uk
Administrator
Posts: 374
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What is the difference?
Wrongful dismissal is where the employer does not give full notice (in real terms - of its intention to dismiss the employee (or pay in lieu - where the contract allows the employer to actually pay, in lieu)) provided under the contract.
So, for example, if your contract provides that you are entitled to say, 6 weeks notice, then, if the employer failed to pay in lieu - or allow you to work the notice, then your claim would be for 6 weeks pay and all the benefits and entitlements that you would have received had you carried on working for that period. Note though, that the notice period cannot be less than the statutory periods allowed to an employee – so, if you have worked 10 years, then it is a minimum of 10 weeks notice – regardless of what the contract says.
Wrongful dismissal is effectively a breach of contract. Like many contractual issues, fairness or “justice” often do not come into it - merely “What have the parties agreed?”, “Is there a breach and, “What loss has been suffered?” If the parties have agreed that the employee would receive “x months” notice – or pay in lieu, then that is largely that.
Unfair Dismissal was created by an Act of Parliament (as opposed to wrongful dismissal which was created by judges). Unfair dismissal looks into the “fairness” or reasonableness of the decision to dismiss, and provides that in order to be “fair”, one of the specified categories for dismissal has to be made out by the employer – i.e. redundancy, conduct, capability etc. and a fair procedure adopted as well.
Usually (with exceptions) there is a qualifying period of employment needed to claim unfair dismissal – the right to seek wrongful dismissal though, is not so limited.
Damages are, very inoften limited to the maximum sums as prescribed with an unfair dismissal claim, whereas with wrongful dismissal there is no ceiling. So, a claim like this is the weapon of choice for a high earner on a long notice period, on day two of the contract – so football managers take note!
There are different time limits involved, so early advice is essential.
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