Unfair & wrongful dismissal
We assist executives to obtain compensation and/or damages for unfair or wrongful dismissal.
Usually (although not always) the fact that there has been a dismissal is not in dispute.
In some cases, there may be grounds for the executive to claim to have been constructively dismissed, on the basis that the employer has fundamentally breached the contract of employment. Employers typically deny committing such a breach.
For unfair dismissal purposes, assuming that there has been a dismissal the onus is on the employer to show that the reason for the dismissal comes within the definition of “fair”. This can be misconduct, lack of capability, illegality, redundancy or “some other substantial reason” justifying dismissal.
In relation to each of those “fair” reasons a body of case law has developed as to the procedural and other steps that a reasonable employer would usually be expected to take before deciding to dismiss.
Some reasons for dismissal are automatically unfair, such as in health and safety-related cases, or for making a protected disclosure, for union membership or activities, for asserting certain statutory rights or for taking maternity or parental leave.
In most cases, compensation for unfair dismissal is capped at the lower of one year’s contractual pay or a set limit (£78,962 from 6 April 2016). However, in some cases, compensation is uncapped, such as in health and safety-related cases, or where the dismissal is for making a protected disclosure (whistleblowing), or where unlawful discrimination is found.
Wrongful dismissal claims are concerned with dismissals alleged to be in breach of contract. They often arise where the employer considers that the executive is in serious breach of contract and has terminated the contract of employment without notice. The executive disputes that he or she was in serious breach of contract and claims damages as a result. The damages can be very substantial for highly remunerated executives, particularly where the notice period is long. Often one of the main arguments concerns the extent to which any potential damages should be reduced to reflect the executive’s duty to mitigate loss, such as by seeking new employment.
Our assistance to executives in this area includes:
- advising in relation to the prospects of successfully bringing claims;
- negotiating (or mediating) favourable settlement where appropriate;
- advising in relation to strategy and tactics, including whether to bring wrongful dismissal claims in the Court or the Tribunal;
- drafting robust claims;
- gathering documentary and witness evidence with a view to pursuing claims in the Employment Tribunal and/or the Courts
- dealing with preparation for hearings, including dealing with disclosure of evidence from employers and providing representation at directions hearings
- preparing witnesses for hearings
- briefing Counsel to provide representation at full hearings
- if necessary dealing with any appeals to the Employment Appeal Tribunal or Higher Courts.
- advising in relation to issues of quantum or compensation and/or damages;
- dealing with appeals to the Employment Appeal Tribunal and higher Courts where appropriate.