Unfair vs wrongful dismissal

Soot2006 · 15 July 2019 at 4:52PM

Hello, a friend of mine has been dismissed for competency/performance related issues. His company did not go through their own disciplinary procedures, and he had absolutely no idea this was coming. The company doesn't hold performance reviews, but verbal and written (via email) feedback from managers has been positive. However, he has been linked to several minor verbal altercations with a colleague (but never disciplined for this). The person with whom the altercations occurred as not been dismissed. They have both worked there the same amount of time, about 7 or 8 years. He was escorted out of the building and told that arrangements would be made for return of personal items.

The company have offered him 10 months of salary.

This is clearly wrongful dismissal - lack of process. The company seem to acknowledge this by offering the payment, which online calculators suggest would be pretty much what could be expected from an employment tribunal.

But what about unfair dismissal? Various sources suggest that payout can be higher for this, and the competency reason for dismissal does seem a bit dubious.

My question to help my friend understand his situation more clearly is how to prove unfair dismissal? If it can be proved, is he likely to get a higher payout than 10 months of salary (approx £18,000)?

Comms69 · 15 July 2019 at 4:57PM

Soot2006 wrote: »

Hello, a friend of mine has been dismissed for competency/performance related issues. His company did not go through their own disciplinary procedures, and he had absolutely no idea this was coming. The company doesn't hold performance reviews, but verbal and written (via email) feedback from managers has been positive. However, he has been linked to several minor verbal altercations with a colleague (but never disciplined for this). The person with whom the altercations occurred as not been dismissed. They have both worked there the same amount of time, about 7 or 8 years. He was escorted out of the building and told that arrangements would be made for return of personal items. - was he an employee?

The company have offered him 10 months of salary. - that's not terrible to be fair.

This is clearly wrongful dismissal - lack of process. - no it's unfair dismissal. The company seem to acknowledge this by offering the payment, which online calculators suggest would be pretty much what could be expected from an employment tribunal. - agreed

But what about unfair dismissal? Various sources suggest that payout can be higher for this, and the competency reason for dismissal does seem a bit dubious. - Pay outs 'can' be higher, but also your friends has to go through the hassle of employment tribunal and (unless he's in a union - and no-one ever seems to be!) the cost of legal representation

My question to help my friend understand his situation more clearly is how to prove unfair dismissal? If it can be proved, is he likely to get a higher payout than 10 months of salary (approx £18,000)?

If he is in a union, contact them and pursue it based upon their advice.

If not the legal fees will probably eat up any extra payment, and the payout could be less.

Undervalued · 15 July 2019 at 5:11PM

Soot2006 wrote: »

Hello, a friend of mine has been dismissed for competency/performance related issues. His company did not go through their own disciplinary procedures, and he had absolutely no idea this was coming. The company doesn't hold performance reviews, but verbal and written (via email) feedback from managers has been positive. However, he has been linked to several minor verbal altercations with a colleague (but never disciplined for this). The person with whom the altercations occurred as not been dismissed. They have both worked there the same amount of time, about 7 or 8 years. He was escorted out of the building and told that arrangements would be made for return of personal items.

The company have offered him 10 months of salary.

This is clearly wrongful dismissal - lack of process. The company seem to acknowledge this by offering the payment, which online calculators suggest would be pretty much what could be expected from an employment tribunal.

But what about unfair dismissal? Various sources suggest that payout can be higher for this, and the competency reason for dismissal does seem a bit dubious.

My question to help my friend understand his situation more clearly is how to prove unfair dismissal? If it can be proved, is he likely to get a higher payout than 10 months of salary (approx £18,000)?

Maybe, but even assuming he wins an unfair dismissal claim he will be expected to mitigate his losses as much as possible by actively looking for another job (even if much lower paid). If he can't find one what he gets in JSA (or would have got if he had bothered to claim) will be deducted from any award.

Wrongful dismissal (which is simply breach of contract) is far simpler and he should be awarded his actual losses.

Soot2006 · 15 July 2019 at 5:12PM

Thanks!

He was a employee, normal payroll, etc (office job).

Not sure about union, but probably not as he didn't mention it to me.

Good point about legal fees.

Does it sound like the company is burying an unfair dismissal by pretending it's a wrongful dismissal? Is there a benefit to the company to do this (if they get away with it)?

(I of course only know one side of the story, but he's a pretty genuine person and seemed really surprised by this. Considers himself a good worker that comes up with good ideas for the company. He does accept that his behaviour with this other employee has not been good. This isn't the official cause of the dismissal but he thinks the other employee may have got into the boss' ear)

Perhaps his best move is to grab the cash and go, but I think letting go of his principles might be difficult.

TELLIT01 · 15 July 2019 at 5:15PM

There are risk in taking any claim to tribunal / court, along with the cost of doing so if not a union member. I'd want to be pretty confident both of winning the case, and being awarded more than is currently on the table before going down that route.

Comms69 · 15 July 2019 at 5:16PM

Soot2006 wrote: »

Thanks!

He was a employee, normal payroll, etc (office job).

Not sure about union, but probably not as he didn't mention it to me.

Good point about legal fees.

Does it sound like the company is burying an unfair dismissal by pretending it's a wrongful dismissal? Is there a benefit to the company to do this (if they get away with it)?

(I of course only know one side of the story, but he's a pretty genuine person and seemed really surprised by this. Considers himself a good worker that comes up with good ideas for the company. He does accept that his behaviour with this other employee has not been good. This isten' the official cause of the dismissal but he thinks the other employee may have got into the boss' ear)

They’re not burying anything. They havent said ‘we’ve wrongfully dismisses you, here’s £x’

They’re offering just enough to avoid risking litigation.

Undervalued · 15 July 2019 at 5:20PM

Soot2006 wrote: »

Does it sound like the company is burying an unfair dismissal by pretending it's a wrongful dismissal? Is there a benefit to the company to do this (if they get away with it)?

As I said, wrongful dismissal (ie breach of contract) is far more clear cut. Either it was or it wasn't.

Unfair (in the legal sense) is much more of a judgement call. Lawyers make their money by arguing about what is or is not "reasonable".....

pelirocco · 15 July 2019 at 5:26PM

Comms69 wrote: »

They’re not burying anything. They havent said ‘we’ve wrongfully dismisses you, here’s £x’

They’re offering just enough to avoid risking litigation.

They should be going down the route of a compromise agreement to avoid that

Soot2006 · 15 July 2019 at 5:28PM

Your responses are definitely making me think he should accept the payment and get on with life. I will have a chat with him later and see how he's feeling. It has helped me gain additional perspectives. Thank you!

It's not like he could work there again. I think it's just a very unsettling thing to happen.

Manxman_in_exile · 15 July 2019 at 6:18PM

If my employer had offered me ten months salary to leave, I'd have taken it!

Does your friend lose out on anything else like a pension? Will he find a new job?

haxor · 15 July 2019 at 6:28PM

If my company offers me 10 months wage today i would leave without thinking twice, maybe the only thing he can push is to make sure they will provide him a good reference if needed.

Unfair vs wrongful dismissal

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