Wrongful dismissal

Wrongful dismissal occurs where the contract of employment is unlawfully terminated by the employer. Fairness is not an issue and the sole question is whether the terms of the contract, whether express or implied, have been breached.

A wrongful dismissal claim may arise out of an actual dismissal or where the employee resigns in response to a breach of contract by the employer, known as constructive dismissal. There is no requirement, unlike with an unfair dismissal claim, for the employee to be employed for two years in order to claim wrongful dismissal.

Self-employed contractors who believe they have had their contract terminated early would not be eligible for a wrongful dismissal claim.  However, they may have a contractual claim arising from the early termination of their contract.

Common examples of wrongful dismissal

Wrongful dismissal claims often involve:

• Breach of a notice term, whether express or implied;
• Where the employer seeks to unilaterally impose a reduction in wages or other contractual terms;
• Breach of a contractual procedure; and
• Termination of a fixed-term contract or a “specific task” contract before its expiry without a contractual right to do so.

There may be other breaches of contract terms that can amount to wrongful dismissal. We can review your contract and quickly tell you if you have a potential claim.

How we can help

For Employees:

• Quick Case Assessment – We determine if your employer breached your contract or failed to provide proper notice.
• Employment Tribunal & Court Claims– We advise on your wrongful dismissal claim and will bring in specialist litigation support where formal representation is required
• Negotiated Settlements – We aim to secure fair compensation and resolution without the need for a lengthy dispute.
• Contract & Notice Period Analysis – We review your employment terms to identify any contractual breaches.
• Confidential, Strategic Advice – Protect your professional reputation while asserting your rights.

For Employers:

• Defence Against Claims – We provide advice and support in responding to wrongful dismissal allegations.
• Contract & Policy Reviews – We review employment contracts and dismissal procedures to help identify potential risks.
• Risk Management & Early Resolution – We help minimise exposure through strategic settlements and early negotiation.

Breach of notice period

The most common claim for wrongful dismissal is the employer’s failure to comply with your termination notice period. Notice periods are calculated by reference to one of the following:

• Statutory notice period: the statutory minimum notice period depends on your years of service with the employer; the minimum is one week after one month's employment, rising each year to a maximum of twelve weeks’ notice.
• Express contractual notice period: if you are in a position of seniority within a company, then your contract of employment is likely to contain a longer notice period. An express contractual notice period is subject to the statutory minimum.
• Implied notice period: where there is no express notice period, the law may imply a reasonable notice period. This will depend on all the circumstances, such as your seniority within the company and the length of your employment.

Employer failing to follow contractual procedures

Where there is a contractual obligation to follow a procedure and the employer fails to follow it, the employee may claim losses arising from the breach of contract. The claim may include salary, benefits and bonus payments due in the period during which the contractual procedure would have taken place, depending on the terms of the contract and the loss suffered.

A claim may extend damages for breach of contract beyond the length of the notice period, depending on the nature of the contractual breach. The claim may also take into account contractual benefits such as bonus payments which the employer is trying to avoid.

Fixed-term contract unlawful termination

If a fixed-term contract or a contract for a specific task is terminated before the term expires or the task is complete, this may amount to wrongful dismissal if the employer does not have a contractual right to terminate early.

If the employer is in breach, it may be required to compensate the employee for the contractual losses arising from the early termination. This may include remuneration for the remainder of the term. Where there is such a provision, the claim will only relate to the period of that notice which was not given.

Negotiating with the employer

There are many ways we can help you to handle wrongful dismissal with your employer, including:

• Responding to and addressing allegations put forward by your employer;
• Drafting employment grievances and advising on disciplinary, performance management claims, appeals and processes;
•  Dealing with announcements to the market and communications concerning your departure.

Employer defences to wrongful dismissal

The employer may challenge the claim of wrongful dismissal.  Typical arguments are that the dismissal without notice is justified because the employee has committed an act which has breached the employment contract. Often, an employer will argue that the employee has committed an act of gross misconduct.

Establishing your claim and rebutting these challenges requires expertise and strategic thinking. We are experienced in dealing with these claims and will give you a realistic overview of the strength of your claim and the options available.

Wrongful dismissal compensation

Our lawyers analyse your complete remuneration and benefits package, including share options and other investment mechanisms, and advise you on your likely level of damages.

When assessing the likely damages, salary and contractual benefits may need to be taken into account, including, but not limited to:

• Salary and any contractual salary increase during notice period;
• Bonuses;
• Pension scheme benefits;
• Holidays; and
• Other benefits.

Where there is no contractual entitlement to a specified notice period, the law may imply a reasonable notice period.

Duty to mitigate loss following wrongful dismissal

Employees are generally expected to take reasonable steps to mitigate their losses, including by seeking alternative employment where appropriate. The duty to mitigate can be used by an employer to negotiate on the appropriate settlement. The employer’s arguments may be less compelling where the prospects of securing alternative employment are small. Much depends upon the particular facts of your case.