Coursework Lecturer: Malika Mukimova

Wrongful dismissal

Wrongful dismissal is the termination of a contract when one or more of the terms of this contract are violated. However, even in the absence of a contract, the process is illegal if the employer violates the rules or the law under the ERA 1996. Wrongful dismissal can have any number of reasons, such as discrimination, retaliation, the employee's refusal to do something illegal, and so on. In the UK, this term refers solely to situations where the employer has terminated the services of an employee in breach of contract. The employee may consider himself or herself illegally terminated if the employer fails to notify him or her in advance and properly before the termination. The Gunton case¹ analysed and found that "if an employment contract provides for a certain procedure to be followed before the employee is terminated, then a termination that is made without following that procedure is necessarily wrongful." If an employer wishes to terminate his employee legally to avoid a wrongful termination claim, he simply must comply with the terms of the contract, may behave extremely unreasonably in doing so, and yet have no contractual liability whatsoever. This is the essential difference between wrongful and unfair dismissal: one looks at the letter of the employment contract and the other looks at the manner of dismissal. Most employment contracts have notice clauses and provisions for dismissal procedures, and if these are followed, liability can be avoided.

In general, there are several reasons in which wrongful termination can occur:
а. The employer terminates the contract of employment without notice or with less notice than the employee is entitled to under the terms of the contract or the law (Employment Act 1996).
b. A fixed-term contract is terminated before the end date of the employment contract with the employee.
c. The contract for a specific task is terminated by the employer before the end of the tasks.
d. The employer terminates the contract without completing the disciplinary procedure that was included in the employee's contract.
e. The employee was terminated in violation of the selection procedure that was reflected in the contract with the employer².
f. The employer improperly terminates the contract. His actions indicate that the employer does not intend to be bound by the contract³.
g. There are provisions in the contract that termination can only occur under certain circumstances or for certain reasons that the employer violates those procedures.
If an employer is presented with an indolent employee and wishes to dismiss them summarily, he may do so if the employee is found guilty of repudiatory breach of contract; this is akin to the 'behavior' ground for avoiding liability for unfair dismissal, which will be discussed later. The court concluded in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698 that a breach must be "sufficiently fundamental" to justify dismissal. According to one observer, "the most prevalent instance of an employee repudiating a contract is serious wrongdoing that qualifies as gross misconduct." Many employment contracts will include a range of stipulations relating to the reasons that are permitted. As a result, if a contract violation is sufficiently serious, the employer may invoke it to escape liability for both wrongful and unjust dismissal.
To determine the appropriateness of termination, the wide test of reasonableness is applied. Under clause, fairness is established by considering whether the employer acted properly in all circumstances "as judged by the fairness and merits of the case." Providing the proper contract notice and establishing that S98 applies is inadequate. Employers must demonstrate that they acted reasonably considering the facts. It must be established that the termination was a last resort and did not come as a surprise. It is vital to verify that sufficient warnings were given; otherwise, a legitimate termination might be deemed unjust.