Wrongful dismissal

Employees who cannot claim unfair dismissal (for example, because they have insufficient service) may be able to claim wrongful dismissal or in rare cases, seek an injunction to prevent the dismissal until a fair procedure has been followed.

Wrongful dismissal is a claim for breach of contract. The breach of contract is the wrongful failure to give proper notice. This means that the normal measure of damages is limited to the amount the employee would have been paid if the contract had been ended lawfully by giving proper notice, less anything earned during what would have been the notice period (Smith v Trafford Housing Trust [2012] EWCA 3221) The employee has a duty to mitigate his loss (Cerberus Software v Rowley [2001] IRLR 160).

Usually the contract specifies the notice needed to end the contract. Employees who are wrongfully dismissed without proper notice can claim any rights they would have had during the period of the notice (Silvey v Pendragon [2001] IRLR 685).

Where a contractual disciplinary or appraisal procedure has not been followed, the employee will be entitled to be paid for the amount of time it would have taken to operate the procedure properly. In some cases, they may also be entitled to an injunction preventing the employer (for example, an NHS Trust) carrying out a dismissal without following the procedure.

As a contract claim, a wrongful dismissal claim can be brought in either the civil courts or the employment tribunal. However, although there is no cap on claims in the civil courts, in the tribunal such claims are limited to £25,000.