Wrongful dismissal
[ch 10: page 394]Employees who cannot claim unfair dismissal (normally because they have insufficient service) may be able to claim wrongful dismissal.
Wrongful dismissal is a claim for breach of contract, namely failure to give the proper contractual notice. In this type of claim, damages are normally limited to the wages that would have been earned during the notice period, less anything earned during that period (Smith v Trafford Housing Trust [2012] EWCA 3221). The employee has a duty to mitigate their loss (Cerberus Software v Rowley [2001] IRLR 160).
Where a contractual disciplinary, capability or appraisal procedure has not been followed, the employee will usually be entitled to the amount they would have earned over the time it would have taken to operate the procedure properly. They may sometimes also be entitled to an injunction preventing the employer dismissing in breach of the procedure.
A breach of contract claim for wrongful dismissal can be brought in either the civil courts or the employment tribunal. There is no financial cap on claims in the civil courts, but in the employment tribunal, compensation for breach of contract claims (including wrongful dismissal) is capped at £25,000.