Wrongful dismissal in the United Kingdom

In United Kingdom law, the concept of wrongful dismissal refers exclusively to dismissal contrary to the contract of employment, which effectively means premature termination, either due to insufficient notice or lack of grounds. Although wrongful dismissal is usually associated with lack of notice sometimes it can also be caused by arbitrary dismissal where no notice was required but certain grounds were specified in the contract as being the only ones available but none existed.

Wrongful dismissal does not terminate the contract - it is a repudiatory breach, i.e. one entitling the employee to consider himself no longer bound on the basis of the employer no longer considering itself bound. The employer's repudiatory breach (wrongful dismissal) forces the employee to accept it as he is prevented from earning from the employer and required to mitigate by working for someone else, thus terminating the contract. This does not follow contract law and is an invention by judges, disliked by others, designed to reflect the reality of employment, using the dual fictions that because the right to wages depends on the obligation to work, there is no right to wages if the employer tells the employee not to work (forgetting that the employer is not able to terminate the obligation to work other than in accordance with the contract) and that the employee has accepted the repudiation by not working for the employer even though he is willing and able. Otherwise the employee would be entitled to stay at home at the employer's request yet sue for unpaid wages as a debt.

An employer is only entitled to dismiss an employee without notice:

The last example, trust and confidence, is commonly known as "gross misconduct", but employment law only distinguishes between misconduct that justifies dismissal and misconduct that does not. Conduct entitling the employer to terminate the contract is conduct indicating the employee no longer considers himself bound by it and so is technically accepting the termination caused by the employee. Gross misconduct is really just a vague list of offences that could most easily justify summary dismissal for a first offence.

Dismissal for a reason contrary to statute or contrary to a statutory procedure is described as "unfair dismissal" but not all wrongful dismissals are unfair dismissals, and dismissal by forcing somebody to resign through serious breach of contract is known as constructive dismissal and constructive dismissal is usually a wrongful dismissal due to lack of notice.

If an employer dismisses an employee without legally required notice then the employee is usually not bound by restrictive covenants (increasingly though courts treat pay in lieu of notice as curing lack of notice). This means the employer of a senior employee privy to company secrets should be careful not to unjustifiably summarily dismiss him, or put him on garden leave or pay him in lieu of notice without a contractual provision allowing it, or even miscalculate his notice period making it a day short.

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