Employment law – Wrongful
Dismissal
Contractual claim for damages (ie any outstanding pay and benefits) for the duration of an employee’s notice
period
Aims to put employee in the position they would have been in had the contract been properly performed
Successful claim prevents an employer from enforcing any PTCs
Partially governed by the Employment Rights Act 1996 (s 86 & 97(2))
Step 1: State the basis for the claim
WD is a contractual claim for damages based upon common law principles
Step 2: Was the individual an employee?
No need to complete a qualifying period of service to bring a claim for WD
Employee is someone who has or had a contract of service – s 230(1) and (2) and is not part of an excluded
class
Excluded classes:
Employees on particular types of fixed term contracts which are shorter than 2 years in length are not entitled
to redundancy payments on the expiry of the term without it being renewed if such employees have previously
agreed in writing to waive it – s 197(3)
Employees on short term contracts of less than 1 month – s 1 – 7 do not apply – s 198, meaning that short term
employees have no right to a statement of particulars
Mariners – although note that the extent to which the ERA does or does not apply to mariners depends on their
status e.g. crew, masters, merchant seamen – s 199(1) – (8)
Police – certain sections of the ERA do not apply to those employed in the police service or who have the
powers of constables – s 200(1) – (2)
Workers employed offshore – are not covered by ERA unless scope of the ERA is extended by an Order in
Council – s 201(2)
Step 3: When can the contract be lawfully terminated?
This depends on the type of contract of service
If the contract is for an indefinite period: as long as the employee has been “continuously employed” for more than one
month an employee is entitled to the minimum notice periods set out under s 86(1) and (2)
Length of employment Minimum notice period
More than 1 month 1 week
More than 2 years 1 week for each complete year of employment, up to a
maximum of 12 weeks
12 years or more 12 weeks
Express notice periods in the contract will apply as long as it is not less than the applicable statutory minimum
If no express term exists, employer must give “reasonable notice” at common law – usually linked to the
frequency that the employee is paid and can sometimes exceed (but cannot be less than) the statutory minimum
Dismissal
Contractual claim for damages (ie any outstanding pay and benefits) for the duration of an employee’s notice
period
Aims to put employee in the position they would have been in had the contract been properly performed
Successful claim prevents an employer from enforcing any PTCs
Partially governed by the Employment Rights Act 1996 (s 86 & 97(2))
Step 1: State the basis for the claim
WD is a contractual claim for damages based upon common law principles
Step 2: Was the individual an employee?
No need to complete a qualifying period of service to bring a claim for WD
Employee is someone who has or had a contract of service – s 230(1) and (2) and is not part of an excluded
class
Excluded classes:
Employees on particular types of fixed term contracts which are shorter than 2 years in length are not entitled
to redundancy payments on the expiry of the term without it being renewed if such employees have previously
agreed in writing to waive it – s 197(3)
Employees on short term contracts of less than 1 month – s 1 – 7 do not apply – s 198, meaning that short term
employees have no right to a statement of particulars
Mariners – although note that the extent to which the ERA does or does not apply to mariners depends on their
status e.g. crew, masters, merchant seamen – s 199(1) – (8)
Police – certain sections of the ERA do not apply to those employed in the police service or who have the
powers of constables – s 200(1) – (2)
Workers employed offshore – are not covered by ERA unless scope of the ERA is extended by an Order in
Council – s 201(2)
Step 3: When can the contract be lawfully terminated?
This depends on the type of contract of service
If the contract is for an indefinite period: as long as the employee has been “continuously employed” for more than one
month an employee is entitled to the minimum notice periods set out under s 86(1) and (2)
Length of employment Minimum notice period
More than 1 month 1 week
More than 2 years 1 week for each complete year of employment, up to a
maximum of 12 weeks
12 years or more 12 weeks
Express notice periods in the contract will apply as long as it is not less than the applicable statutory minimum
If no express term exists, employer must give “reasonable notice” at common law – usually linked to the
frequency that the employee is paid and can sometimes exceed (but cannot be less than) the statutory minimum
