Wrongful dismissal, unfair dismissal, or both?

By Charles Crow and Alexander Mellis

It is trite to say that when dismissed summarily for gross misconduct (i.e. without notice) an employee has the option of bringing a claim for unfair dismissal or wrongful dismissal (breach of contract). It is equally trite law that an employment tribunal has two different tests to apply in approaching wrongful and unfair dismissal. For the latter, the tribunal must consider whether the employer’s decision to dismiss was within the reasonable range of responses. The warnings to tribunals against substituting its view for that of the employer are well known and oft repeated. However, when approaching a wrongful dismissal claim, the tribunal must do exactly that: deciding for itself whether the employee has in fact done the acts that the employer alleges have put the employee in fundamental breach of the contract. The distinction between these two causes of action raises several strategic issues for both claimant and respondent lawyers.

Not only are the tests for these two types of claims distinct (see by way of example the contrasting results for the two bases of claim in the case of Enable Care and Home Support Ltd v Pearson, UKEAT 0366/09), they give rise to different considerations as to what evidence is relevant and required…

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