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Wrongful Dismissal Model Answer Notes

LPC Law Notes > Employment Law Notes

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A more recent version of these Wrongful Dismissal Model Answer notes – written by University Of Law students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our Employment Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Wrongful Dismissal Model Answer CAN EMPLOYEE MAKE A CLAIM OF WRONGFU L DISMISSA L?Wrongful dismissal is a common law contractual claim based on the fact that the dismissal by the employer was in breach of contract; this can arise when: a) An indefinite term contract is terminated with no notice or short notice b) A fixed term contract is terminated before the expiry of the fixed term, with or without notice, where there is no break clause c) An employee establishes that he has been constructively dismissed

Termination by notice
? An indefinite contract of employment may be terminated by notice. If proper notice is given by the employer, no wrongful dismissal claim will arise because the employer has acted within the terms of the contract of employment.
? There are 3 sources of notice period within the contract: 1) Express term - Parties are free to contract as long as they abide by the statutory minimum (see below) 2) Implied term - where there is no express term, it is an implied term that 'reasonable' notice is to be given; this can depend on seniority of employee: a. Unskilled and semi-skilled employees - reasonable notice unlikely to exceed the statutory minimum (see below) b. Professional employees (solicitors, accountants, highly-skilled technical employees, scientists, middle-managers etc.) - three to six months c. Very senior employee (managing director) - around 12 months 3) Statutory minimum - The expressly stated notice period must not be less than the statutory minimum; naturally therefore the longer of the two will be the relevant timeframe. The minimum notice periods that can be given by an employer is the statutory minimum as prescribed by s86(1) ERA 1996 are as follows: Employed for...
Minimum notice...
1 month 1 week 2 years 2 weeks 3 years 3 weeks (etc...) 12 years 12 weeks (maximum) 40 years 12 weeks Fixed term contracts
? If the employer or employee terminates a fixed term contract, with or without notice, before its expiry date, there will be a breach of contract unless: a) The other party is in repudiatory breach of the contract; or b) There is express power in the contract allowing early termination (a break clause); or c) The termination is by mutual agreement Constructive dismissal

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