What is wrongful dismissal?
A claim of wrongful dismissal can arise when you (the employer) breach the contract of employment when you dismiss an employee. Importantly, it has nothing to do with whether the dismissal was fair — that falls under statutory unfair dismissal rules. Wrongful dismissal is ultimately about contract compliance.
Notice periods: express, statutory and impliedWhat is wrongful dismissal?
The most common example is failing to give the correct notice. If an employee is entitled to three months’ notice but only receives one, you have
breached the contract, and the employee can claim the value of the notice they should have received.
However, wrongful dismissal can also arise from breaching other express, implied, or incorporated contractual terms – not just notice clauses.
Notice periods: express, statutory and implied
HR teams should remember there are three potential notice periods:
- Express contractual notice – This should be set out clearly in the contract.
- Statutory minimum notice – under section 86 of the Employment Rights Act 1996:
- Employees must be given at least one week’s notice (after one month’s service)
- This increases by one week per year of service, from year two
- Total is capped at 12 weeks.
If the contract gives less, the statutory minimum overrides it.
- Implied reasonable notice – This is now rare, as most contracts specify notice. It’s only used if the contract is silent. The courts imply a “reasonable” period depending on the role, but it can never be less than the statutory minimum. This is now rare, as most contracts specify notice.
When dismissal without notice is lawful
Dismissal without notice — summary dismissal — is not wrongful if the employee is found to have committed gross misconduct, meaning a fundamental breach of contract that destroys the employment relationship. The employer can then treat the contract as terminated immediately, without notice or pay in lieu.
However, HR should avoid “instant” dismissals. Even in clear gross misconduct cases, employers should follow a fair disciplinary process, both because it may be contractually required, and to reduce unfair dismissal or discrimination risks.
Further reading
- Dismissal: your rights: Unfair and constructive dismissal – GOV.UK
- Unfair dismissal – Dismissals – Acas
- 10 things you should know about notice periods and notice pay – Hunter Law
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