Employment Law (LLB) - Wrongful Dismissal

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What is a wrongful dismissal?
It is a claim in common law for a breach of contract. The claimant would be asserting that the employer acted in breach of contract by terminating it in the manner in which he did, or by terminating without notice without proper justification.
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Why are there not a lot of cases of wrongful dismissal? What would be one advantage of bringing a claim of wrongful dismissal? Give case example.
Because the claim for unfair dismissal under statute is more commonly used. Wrongful dismissal does not have a limit like unfair dismissal, therefore where damages are likely to be high this may be a better claim. Shove v Downs Surgical Plc
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What must be present for a claim of wrongful dismissal?
There must be a breach of contract which is not justified by the employee's repudiation of the contract.
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How could the employer breach the employee's contract?
This will usually occur through a failure to give sufficient notice. In such a case two elements are required. 1. termination of a contract of employment without due notice, that is no notice or less notice than that to which the employee is entitled
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2. In circumstances where this lack of notice is not justified by the employee's repudiation of the contract.
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If there is not a provision in the employee's contract stating what notice either parties should give, how will the ET's calculate the amount of notice? What provision is this subject to?
Section 86 of the ERA 1996 states that after one month's employment parties will be obligated to give notice. 1 month -2years' service = 1 week 2 years-12 years' service = one week for each complete year of service. Max 12 weeks. 12+ =12weeks no less
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What notice does an employee need to give if it is not stated in their contract of employment?
1 Week regardless of length of service.
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What sort of grounds may be regarded as sufficient to justify such termination?
Gross misconduct & extreme carelessness. In such cases the courts may feel that the dismissal without notice was justified.
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What will be necessary to show when an employer dismisses an employee without notice if it is to be justified?
It must be showing that repudiation was present. This means that the employee disregarded some essential condition of the contract and therefore committed a fundamental breach. The case of Sinclair v Neighbour discussed when this would be the case.
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Give some examples of a repudiation or fundamental breach with cases to back it up.
Unofficial industrial action - this is not covered by statute in the same way official action would be. Making secret profits from employment - Boston Deep Sea Fishing Co v Ansell and Nottingham v Fishel.
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Consistent unco-operative conduct -nPepper v Webb. Contrast this with a one-off altercation after provocation as in Wilson v Racher.
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What is the employee effectively saying if repudiation on the employee's part can be shown? Give case example.
The employee will be showing that the contract means nothing to them and is therefore how summary dismissal (wrongful dismissal) can be justified. In Pepper v Webb the employee stated he 'I couldn't care less about t your bloody greenhouse'.
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A wrongful dismissal is in effect a breach of contract. With that in mind where will such claims be heard?
Usually in the County court. For particularly complicated cases the High Court. Before 1994 the ET did not have jurisdiction to hear such claims.
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With the above in mind, why would a claimant be more likely to bring an action of wrongful dismissal through the civil courts rather than the ET?
Employees have 6 years to bring a claim. In the ET is is 3 months. Legal aid is available in some circumstances, it is not in the ET. Compensation unlimited. Limit of £25,000 in the ET. Legal costs may be awarded,this is unlikely in the ET.
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What are some disadvantages of bringing a claim of wrongful dismissal through the Civil Courts?
There are increased legal fees and a trial can be long and complex. ET cases are usually quicker.
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What problems have wrongful dismissal cases had in the Civil Courts? Give case example.
The courts have not always distinguished between contracts of employment and all of contracts in wrongful dismissal cases. This has caused problems where repudiation and justification of dismissal without notice is concerned.
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The general rule set out in Gunton v The Mayor, Aldermen and Burgesses of the London Borough of Richmond Upon Thames stated that contracts of employment are no different from other contracts and therefore repudiation does not terminate them.
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Boyo v Lodon Borough Council of Lambeth was bound by the decision in Gunton, however the courts felt that contracts of employment should be distinguished from all of contracts in this case and that such an except had merit.
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What remedies are available for a successful claim of wrongful dismissal?
injunctions and specific performance and damages.
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Why is an injunction and/or specific performance remedy not frequently used in such cases? Give case example.
The courts usually refuse such remedies because it may mean forcing the employer to re-employ the employee. To do so would infringe the voluntary nature of the contract and risk turning 'contracts of employment into contracts of slavery' .
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De Francesco v Barnum.
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In what situations would an injunction or specific performance remedy be granted?
Exclusive performance contracts may be supported by negative restraint clauses which prevent the artiste from working for any other employer (Lumley v Wagner) & (Warner Bros v Nelson) Secondly where there is no loss of trust and confidence between
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the parties. (Hill v C A Parsons & Co Ltd).
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How are damages calculated and what do they cover?
Damages are the most common remedy for wrongful dismissal as they are based on the normal principles of damages in contract law. This means that the amount of money which would be awarded must put the employee in the position they were in but for the
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breach of contract. The employee is therefore entitled to claim money to cover losses which arise naturally in the ordinary course of things from the breach and also for any loss which was reasonably forseeable by the parties.
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What loss may be forseeable? Give case examples.
Net wages or salary which would be have been received during the notice period (British Transport Commission v Gourley) Damage to reputation (Clayton v Oliver) Fringe Benefits (Manubens v Leon)
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What sort of loss will be excluded?
Compensation for injury to feelings or psychiatric illness associated with dismissal (Addis v Gramophone Co Ltd) Note: An award may be available in tort. Any loss caused by the employee's failure to mitigate his own losses (Yetton v Eastwoods Froy).
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Can a claimant get damages for a loss of opportunity to claim unfair dismissal? Give case example.
No. In The Wise Group v Mitchell the claimant was also prevented from claiming damages for the loss of opportunity to remain in employment.
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How may damages be reduced? Give case example.
They may be reduced by the employee failing to mitigate his own loss (Yetton v Eastwoods Froy). Tax that would have been paid had the money been received as wages (British Transport Commission v Gourley). Other benefits received (sick pay,
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unemployment benefit, income support are deductible, as is redundancy pay unless it can be shown that the employee would have been made redundant anyway) Colledge v Bass Mitchell & Butlers Ltd. Unfair dismissal compensation awarded for loss of
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earnings is also deducted. Benefits received under private insurance schemes are not, nor are any retirement pension payments (Hopkins v Norcross).
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Can costs be awarded against claimants?
Yes they can where the claimant or representative has '...acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings has been misconceived'. The award against C can be up to £20,000.
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Why are there not a lot of cases of wrongful dismissal? What would be one advantage of bringing a claim of wrongful dismissal? Give case example.

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Because the claim for unfair dismissal under statute is more commonly used. Wrongful dismissal does not have a limit like unfair dismissal, therefore where damages are likely to be high this may be a better claim. Shove v Downs Surgical Plc

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What must be present for a claim of wrongful dismissal?

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How could the employer breach the employee's contract?

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