Employment Law and Practice - Essay Example

In unfair dismissal claims costs are rarely recoverable. By contrast, it is reverse a successful employer or employee may recover legal costs in a wrongful dismissal claim in the normal civil courts. 2 The method of how compensation is to be calculated is also different. In wrongful dismissal claims, the measure of damages is calculated upon comparing the employee in such a position they would have been in had they received payment for the proper notice to which they were eligible under their contract.

In unfair dismissal claims, the calculation is based on the basic award based on a mathematical formula, and also includes a compensatory award, which will usually encompass loss extending beyond the end of the notice period. A dismissal can be both wrongful and unfair at the same time, so compensation paid by the employer for wrongful dismissal will usually be set off against the compensatory award granted of an unfair dismissal award. 3 Another important difference is that in wrongful dismissal cases the employer can rely on facts, which he finds out or gets; intimation after the employee has been dismissed (see Boston Deep Sea Fishing v Ansell [1888] 4.

In unfair dismissal cases, what is the important factor to be taken into account is that the employer knew at the time the employee was dismissed. The difference between the concepts of unfair dismissal and wrongful dismissal can be illustrated by example where an employer has dismissed an employee who has committed a breach of contract, example can be, an act of gross misconduct which occurs in respect to the heart for the contract. In a wrongful dismissal claim, the employee will not be entitled to pay in respect or lieu of notice or notice pay at all, here as the employee has broken the contract and cannot therefore rely on it to claim notice pay.

With an unfair dismissal claim, the employer