Wrongful dismissal: look at the circumstances behind the misconduct

Most HR professionals are familiar with unfair dismissal claims, but wrongful dismissal is a different type of claim.

What is the difference between unfair dismissal and wrongful dismissal?

Unfair dismissal centres around whether it was fair for the employer to dismiss the employee.  Wrongful dismissal usually focuses on whether the employer was entitled to dismiss without notice.

In most cases, if you dismiss an employee, they are entitled to receive either their contractual or  statutory notice pay. However, you can dismiss without notice if the employee has committed a serious breach of contract, for example gross misconduct. In those situations, you can treat the employment contract as ended immediately and don’t have to pay notice pay.  This is known as summary dismissal.

XX v YY

It’s vital to look at the full circumstances surrounding an employee’s conduct before deciding whether summary dismissal is justified.

In XX v YY, an assistant head teacher sent a sexual message to someone she believed was under the age of 18.  The employer accepted that she had acted while trapped in a coercive and controlling relationship. She was under extreme pressure and feared serious harm to herself and her children if she did not comply with demands being made of her.

When this conduct came to light, she was dismissed from her post without notice and she brought a wrongful dismissal claim.  The tribunal decided that the pressure she was under was not relevant when assessing whether her actions amounted to a serious breach of contract.

The Employment Appeal Tribunal (EAT) disagreed. The correct approach is to consider the employee’s conduct objectively and in the context of all the circumstances. The question is whether the conduct was serious enough to destroy the trust and confidence needed for the employment relationship to continue. This included taking account of the duress under which the employee had acted.

Tips for HR and employers

• Conduct should not be considered in isolation.
• Even where behaviour appears to amount to gross misconduct, you should carefully assess any mitigating circumstances before deciding that dismissal without notice, and the loss of notice pay, is justified.

Further reading

• Disciplinary Procedure step by step – ACAS
• Wrongful dismissal not the same as unfair dismissal – Hunter Law
• Dismissing for gross misconduct: lessons from Langton V Buckingham Fire and Rescue – Hunter Law 
• Consider allegations separately in gross misconduct cases – Hunter Law