Legal Actions for Wrongful and Unfair Dismissal - Essay Example

Order 192863     Compare and contrast the legal actions for wrongful and unfair dismissal Wrongful and unfair dismissals are two different issues and must be dealt in different ways. The two issues must not be confused. Firstly wrongful dismissal is based on contract law. This means that whenever a claim in wrongful dismissal arises, the first thing to look at is the employee’s employment contract so as to see if the employer has broken the contract or not. The most common feature in wrongful dismissal is where the employee is dismissed without being given notice or the notice given is too short. However, either party can end the employment relationship if proper notice is given to either party. This necessary or proper notice can be the stipulated legal notice or the notice agreed upon on employment contract. The employee can justify dismissing the employee without notice (summary dismissal) if the employee commits a serious offence i.e. theft. Wrongful dismissal can also arise as a failure by the employer to follow a contractual disciplinary procedure. Wrongful dismissal claims can be brought in the employment tribunal, county court of High Court depending on the value of the claim. On the other hand unfair dismissal of an employee arises when an employee is working full time or part time, the amount of hours worked per week is relevant. The self employed are excluded. Unfair dismissal claims to arise, an employer must be in continuous employment of at least one year. Further the employee’s job must have ended less than 3 months ago. This is so because an employee has 3 months from the date of dismissal to bring a claim. There are various legal actions brought up against wrongful and unfair dismissal. First and foremost wrongful dismissals are common law concerns and cases are frequently dealt with by the ordinary law courts. However, wrongful dismissal is quite different from unfair dismissal. Unfair dismissal cases are dealt with at the Employment Tribunal (ET) not by the courts. Compensation for wrongful dismissal is different from an award for unfair dismissal which is a statutory entitlement. A dismissal can be both wrongful and unfair at the same time. The most common feature of wrongful dismissal is where the employee is under contract and he/she is dismissed without notice or as per the agreed notice. However, if the employer breaches any term of the agreement, an employee is at liberty to resign and seek compensation for constructive dismissal. Every contract of employment has an implied mutual duty of trust and confidence. Recently tow cases were considered to determine whether a claim for damages can be pursued in the courts where a dismissed employee claims to have suffered psychiatric injury and consequent financial loss as a result of an employer’s behaviour and when the employee has already won a case in employment tribunal for unfair dismissal The House of Lords heard appeals in the cases McCabe v Cornwall County Council and Eastwood and another V. Magnox Electric Plc. There was difficulty in deciding the case given the decision given in earlier cases of Johnson v Unisys Ltd. A Majority of their lordships held that an employee could not use a breach of the implied terms of trust and confidence to claim damages for psychological injury if the damage arose because of the manner of the dismissal itself. The employees in the conjoined appeals claimed that events prior to their actual dismissals were the cause and therefore the basis for their respective legal actions. Looking at the facts of McCabe, she was a teacher at Mounts Bay School in Cornwall. Following complaints of inappropriate behaviour made against him by female pupils, he was suspended. While on suspension he was required to attend a disciplinary hearing. Meanwhile he began to suffer psychiatric illness. Over the next three years there were further disciplinary hearings and in 1996 his dismissal was confirmed. In December the same year Mr. McCabe won a case of unfair dismissal and was awarded compensation of $11,000, the statutory maximum at the time. In March 1997, Mr. McCabe made a High Court claim for damages for psychiatric illness caused by the behaviour of the council and the school. The judge ignored his argument that his claim related to matters preceding his dismissal, rather than to the manner of the dismissal itself. Mr. McCabe won his appeal in the court of appeal and his employer then appealed to the House of Lords. On the case of Eastwood and William v. Magnox Electric Plc, Mr. Eastwood was involved in a disagreement with his immediate superior. This escalated and Mr. Eastwood was given a final written warning. Mr. Williams was asked to give a false statement in support of the case against Mr. Eastwood. He refused to do so and was threatened that he too would be mode the subject of investigation and disciplinary action. The men were subsequently told that they faced serious allegations of sexual harassment and had to answer detailed questions without being told what the allegations were. In August 1996, but men were suspected and later dismissed. By this time, both men were suffering from stress. Mr. William was a case of unfair dismissal and Magnox settled a similar claim brought by Eastwood. They went on to sue Magnox in the County Court, claiming breach of the implied term of trust and confidence and loss and damage for stress-related illness, depression and the inability to work. Magnox argued that the claims related to the unfair dismissal claims which had already been settled and only Tribunals have jurisdiction to hear unfair dismissal claims. Magnox won the argument and succeeded again in the Court of Appeal. Mr. Eastwood and Mr. Williams took their case to the Hose of Lords. The House of Lords allowed the appeal of Eastwood and Mr. Williams and also dismissed the appeal of Mr. McCabe’s employer. The Lord’s view was that the circumstances in each case which could give rise to action were separate from the dismissals themselves and for psychiatric injury caused by the employees’ actions. However, the Lords recognized practical subsequences arising out of this judgment. Therefore a claim for unfair dismissal would be subject to the maximum statutory award whereas a common law claim for damages will not. Further to compensation, there is reinstatement. This is essentially getting the job back with no loss of money or security. This remedy is available for unfair dismissal where the employee has been suspended and upon bringing a suit he is found not to have committed any wrong. In this regard an employer can be directed to reinstate the employee without any loss of money or security. In essence he is paid all the money and allowed to continue in his employment. However, this legal action is not available in wrongful dismissal of an employee. The available legal action here is payment in lier of notice. If an employer dismisses an employee without payment then the employer is in breach of contract and the employee can sue for the wages they would have received if notice had been given. Some employers can be prepared to pay this sum gross, rather than not, but entitlement depends on the contract employment. In unfair dismissal there is further remedy of reengagement. This is where an employee is allowed to continue working but he is given another engagement (work) different from the one he/she has been undertaking. This legal action in not available in wrongful dismissal since it is purely contractual and an employee is under contract to carry out specific duties. Finally, there is a difference between unfair dismissal and wrongful dismissal. However an agreed party can bring a suit on the two courts but once one has been compensated it covers the other. This is so as to avoid double compensation to an employee. Therefore the two dismissals are me and the same only that in fair dismissal the employee dismissed must be a full time employee or part time while in wrongful dismissal an employee is under employment contract of not less than one year and such dismissal must be done without proper legal notice or without necessary period as agreed in the contract. Bibliography 1. Widgets to Digits:  Employment Regulation for the Changing Workplace.  Cambridge: Cambridge University Press (2004). 2. Comparative Labor Law - Bridging the Past and the Future (with Benjamin Aaron), 29 Comparative Labor Law & Policy Journal 3. Rethinking Labour Law:  Employment Protections for Boundary less Workers, in Boundaries and Frontiers of Labour Law (edited by Guy Davidson and Brian Languille, Hart Publishing, 2006) 4. Employment Regulation, in International Encyclopedia of the Social and Behavior Sciences (edited by Neil J. Smelser and Paul B. Baltes, New York:  Elsevier Science Ltd., 2001). 5. Employees as Stakeholders Under State Non-Shareholder Constituency Statutes, 21 Stetson Law Review 45 (1991) 6. Business Law, K. Abbott, , YHT London, 7th Edition 2002, Biddles Ltd, London. 7. Keenan & Riches, Business Law, 7th edition Longman, Pearson Education 8. Duddington, Employment Law, 2nd ed (2007) Pearson Education 9. Intute http://www.intute.ac.uk/socialsciences 10. http://www.opsi.gov.uk/acts.htm Read More