Wrongful Dismissal (L15) Flashcards
What are the different modes for terminating the contract of employment?
Death/dissolution of employer.
Frustration of the contract.
Expiry of fixed-term.
Mutual consent.
Resignation.
Dismissal – by notice or summary dismissal.
What are the requirements for length of notice in dismissal on notice?
Statutory minimum notice (ERA 1996, s86).
- Between 1 month and 2 years employment = 1 week notice requirement.
- Increases 1 week by every year’s service, up to a maximum of 12 years.
Contractual notice.
- What is agreed in the contract.
‘Reasonable’ notice if contract is silent.
What is the requirement for communication of notice in dismissal on notice?
Can be giving orally or in writing, but isn’t effective until communicated.
Must state WHEN the employment comes to an end.
What is payment in lieu of notice (PILON)?
If the employer has made this in the contract, they can pay the employee the equivalent for what they would have worked if given a notice period.
What is summary dismissal and what does it require?
If there is sufficient cause.
Repudiation of contract of employment.
Usually where gross misconduct.
What is sufficient is dependent on fact and circumstance.
How do international instruments protect the right not to be wrongful dismissed?
European Social Charter, 1961 Art 4(4): “reasonable period of notice for termination”.
CFREU Art 30: “protection against unjustified dismissal”.
ECHR Art 8: right to private life (reputation, family income, social inclusion).
How is wrongful dismissal different from unfair dismissal?
Wrongful dismissal.
- Common law rules deriving from contract law.
- Dismissal in breach of contract.
- No qualifying service.
Unfair dismissal.
- Statutory protection in ERA, 1996, part X.
- Unreasonable or unjust dismissal.
- 2 years’ minimum service.
Could potentially have both: if the dismissal was unfair AND in breach of contract.
What is wrongful dismissal?
Dismissal in breach of contract.
Usually dismissal without required notice.
Other possible contractual breaches on dismissal (e.g. breach of procedural term).
What is a wrongful dismissal action?
Action for damages.
Traditionally claim pursued in Sheriff Court/Court of Session.
Jurisdiction of employment tribunals extended in 1994.
Breach of contract claims outstanding on or arising out of termination of employment.
Maximum award of compensation is £25,000.
What kinds of damages are available for wrongful dismissal?
Expectation damages.
Notice.
- Presumed that the employer would have chosen the easiest path to not breach the contract i.e. would still have terminated employment but given notice.
- Paid the amount they would’ve made during their notice period.
What is the Addis limitation on damages?
Addis v Gramophone Co Ltd [1909] AC 488.
No damages for injury to feelings, reputation, future career prospects.
What does case law say about whether discretionary damages can be awarded?
Lavarock v Woods of Colchester Ltd 1967 1 QB 278.
Could NOT claim damages for the discretionary benefits as it is assumed that the employer wouldn’t have paid them.
c.f. Clark v BET [1997] IRLR 348.
Discretionary bonuses and salary increases which would’ve been given during notice period. ALLOWED. What would the employer have paid out if it exercised its discretion in good faith?
What does Johnson v Unisys [2001] ICR 480 tell us about damages awarded for breach of mutual trust and confidence?
He received the maximum statutory damages for dismissal at the time.
However, he suffered a psychiatric illness because of the dismissal and couldn’t work for a long time after.
Johnson argued breach of implied term of trust and confidence in manner of dismissal.
Per Lord Nicholls at 482: “a common law right embracing the manner in which an employee is dismissed cannot coexist with the statutory right not to be unfairly dismissed”.
The ‘Johnson exclusion area’.
Breach of contract relating to the manner of dismissal = NOT FALLING UNDER WRONGFUL DISMISSAL.
The term exists to maintain the employment relationship, it isn’t applicable on dismissal.
If this was allowed, the courts would be going against parliamentary intent. Parliament already made an unfair dismissal regime under statute.
What does Mahmud and Malik v BCCI [1997] ICR 606 tell us about damages awarded for breach of mutual trust and confidence?
Bank collapsed due to dishonest behaviour.
Employees sought to argue that the employer breached this implied term.
Breach of contract complaint due to stigma surrounding them as workers because they worked for BCCI.
Breach of implied term of trust and confidence during employment.
Damages for loss of reputation and future employment prospects possible.
What does Eastwood v Magnox Electric plc [2004] ICR 1064 tell us about the Johnson exclusion area?
Breach of trust and confidence during disciplinary procedures which led to dismissal.
Per Lord Nicholls at 1073:
“Identifying the boundary of the ‘Johnson exclusion area’ … is comparatively straightforward. The statutory code provides remedies for infringement of the statutory right not to be dismissed unfairly. An employee’s remedy for unfair dismissal … is the remedy provided by statute. If before his dismissal … an employee has acquired a cause of action at law for breach of contract … that cause of action remains unimpaired by his subsequent unfair dismissal.”
