Chapter 16Employing labourThe wrongful dismissal claim
Some of the main reasons for preferring a wrongful dis-
missal claim are as follows:
■An employee who is dismissed may not have com-
pleted the one year’s service required for an unfair
dismissal claim. This bar does not apply to wrongful
dismissal claims.
■The time limit – i.e. three months – for bringing claims
of unfair dismissal may have expired. The period for
wrongful dismissal, which is a common law claim
in the county court or High Court, is six years from
dismissal. However, the three-month period applies
to wrongful dismissal claims before an employment
tribunal, unless the tribunal decides that it was not
‘reasonably practicable’ for the complaint to be pre-
sented during that period.
■Awards for unfair dismissal may be reduced substan-
tially by a sum representing the fault of the employees- e.g. late arrival at work. Damages for wrongful dis-
missal are not subject to a deduction for contributory
fault.
■The damages for wrongful dismissal in the case, e.g.
of a highly paid person could still well exceed the
maximum amount of compensation available for unfair
dismissal – where the compensatory award is cur-
rently a maximum of £63,000.
When does wrongful dismissal occur?
The main situations of wrongful dismissal are as follows:■where the contract is of indefinite duration but ter-
minable by notice, the termination of the contract
without notice or with shorter notice than that to
which the employee is entitled, and, of course, sum-
mary dismissal without any notice at all;
■in the case of a fixed-term contract, termination be-
fore the fixed term expires;
■in the case of a contract to carry out a specific task,
termination before the task is completed;
■where the employer dismisses the employee on dis-
ciplinary grounds but does not follow a procedure
laid down in the contract;
■selection for redundancy in breach of a procedure set
out in the contract.When dismissal is justified
Various forms of misconduct will justify a dismissal. As
we have seen in Connorv Kwik Fit Insurance Services
Ltd(1997), the managing director of an insurance com-
pany, who had falsely declared when signing a professional
indemnity insurance form that he had not been involved
with any company that had been wound up, failed in a
claim for wrongful dismissal. Again, in Blayneyv Colne
Liberal Club(1995) a bar steward’s claim for wrongful
dismissal failed. He had been summarily dismissed for
failure to hand over the bar takings to his employer or to
put them in the safe and hand over the safe keys.Rights and remedies on dismissal
These are as follows.561Fraserv HLMAD Ltd(2007)F appealed against an order striking out his claim form
and dismissing his wrongful dismissal claim in the High
Court against HLMAD Ltd. F’s dismissal was effected by
insolvency practitioners of HLMAD Ltd. F claimed unfair
dismissal and wrongful dismissal before a tribunal. In
his claim initiating proceedings in the tribunal he stated
that he reserved the right to pursue an action in the High
Court for damages for wrongful dismissal in excess of
£25,000, the tribunal maximum. F later began an action
in the High Court for wrongful dismissal but did not with-
draw the tribunal claim. The tribunal went on to rule in
F’s favour on the unfair dismissal and the wrongful dis-
missal claims, capping the damages on the latter claim
to £25,000, even though it found that F had suffered a
greater loss.
F’s claim in the High Court was struck out and this
was upheld by the Court of Appeal.
The civil procedure rule of merger applied. The effect
of a judgment for the claimant absorbs any claim that
was the subject of the action into the judgment so that
the claimant’s rights are then confined to enforcing the
judgment. The claim for the excess over £25,000 was
not a separate cause of action, since this could not be split
into two causes of action: one for damage up to £25,000,
and another for the balance. A claimant who expected to
recover more than £25,000 for wrongful dismissal should
bring that claim in the county court or High Court. The
merger of the claim into the judgment of the tribunal
was not prevented by the express statement made in the
tribunal claim form that F reserved his right to bring High
Court proceedings for the excess of £25,000.