Can an employer dismiss somebody when they're on sick leave? This is a question that we are often asked.
Wrongful Dismissal should not be confused with Unfair Dismissal, as wrongful Dismissal is based on contract law and the employee’s contract of employment. Any claim for Wrongful Dismissal will, therefore, mean looking at the employee's employment contract to see if the employer has broken the contract.
Wrongful dismissal is when a contract of employment is unlawfully terminated by the employer and in these cases, fairness is not an issue. The only question is whether the terms of the contract, express or implied, have been breached by the employer.
Can employers only enforce the terms of employment contract post-employment restrictions where they themselves are not in breach of that contract?
So, as an example, if an employer terminates an employee’s employment with immediate effect and makes a payment in lieu of their notice period without the contractual right to make that payment, they would be in breach of the contract and could not, therefore, seek to enforce any restrictive covenants.
Employees should make a claim for wrongful dismissal in the Employment Tribunal within 3 months from the date of termination of their employment. One of the important differences between unfair dismissal and wrongful dismissal no required length of service for wrongful dismissal as it is a breach of contract claim.
There is not a fixed amount of damages in which you can claim for wrongful dismissal. It all depends on the individuals pay and any other benefits they might have received had their employer not breached the contract. For example the use of a company car, any bonus payments the individual might have missed out on, although claims for bonuses can be difficult to prove, especially if they’re discretionary in nature.