Difference between wrongful and unfair dismissal

Dismissing someone just means giving them the sack, right?

You may be familiar with the terms wrongful and unfair dismissal. But do you know the difference?

Wrongful dismissal 

Wrongful dismissal is a dismissal in breach of contract. A common example would be where the employer has dismissed an employee, but they have not provided the notice laid down in the employee’s Contract of Employment. Of course, there are some select circumstances when an employer does not need to give notice, for example, if an employee has committed an act of gross misconduct.

If you act in violation of any contractual obligations, the employee can make claims for damages. The damages will reflect the pay and benefits the employee would have received had the dismissal been in line with the contract’s terms.

To make a claim, there is no required length of service necessary. This means that the employee does not need to have worked for you for a certain length of time before they can make a claim.

Depending on the value of the claim, claims can be brought before the County Court, High Court or an Employment Tribunal.

Unfair dismissal

The right not to be unfairly dismissed is a statutory right laid down in the Employment Rights Act.

A dismissal will be considered unfair if:

  • The reason for dismissal does not come within the scope of one of the five potentially fair reasons (e.g. conduct or redundancy).
  • They did not act reasonably in the circumstances in treating it as a sufficient reason for dismissing the employee.
  • The employer did not follow a fair process.

If an Employment Tribunal finds that the employee has been unfairly dismissed, it may order reinstatement, re-engagement or compensation.

In most cases, an employee needs to have at least two years’ service to be able to submit a claim of unfair dismissal to an Employment Tribunal. There are some exceptions to this general rule. For example, if the main or sole reason for dismissing an employee is that they are pregnant, the dismissal will be considered automatically unfair and the employee’s length of service is irrelevant.

Claims can only be brought before an Employment Tribunal.

Want to know more about dismissal?

Read our other guidance:

Our Employment Law Advisers can also provide you with support. Get in contact now to discuss the difference between wrongful and unfair dismissal.

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James Tamm

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