Commentary

(c) Wrongful dismissal and claims for loss of reputation

Division AII Contract of Employment
| Commentary

(c) Wrongful dismissal and claims for loss of reputation

| Commentary

(c)     Wrongful dismissal and claims for loss of reputation

At common law an employee is wrongfully dismissed if their dismissal was in breach of the contract of employment. Normally this will mean dismissal without the notice due under that contract (or upon short notice), but it could also cover a purported summary dismissal for cause (such as where there is an act or a series of breaches which taken individually would not amount to gross misconduct) but where in fact the employee had not been guilty of gross misconduct.

The remedy is to put the employee in the position they would have been in had the contract been performed by the employer lawfully terminating the contract. It is necessary to consider the loses to the employee caused by the breach as opposed to losses caused by other factors.

Exceptionally, there could be a wrongful dismissal if the contract placed restrictions on the reasons for which the employee could be dismissed and the employer acted in breach of those restrictions.

The terminology is important here because, although the media can be trusted to treat wrongful and unfair dismissal as synonymous, they are totally different in origin and content. It is essential legally to keep them separate and realise that more often than not they will be subject to different legal principles. The two claims are about different things and can result in an unfair dismissal claim failing and a wrongful dismissal claim succeeding and vice versa.

A long-standing employee of 20 years may be dismissed

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