Wrongful dismissal and gross misconduct: an employee guide

In this guide we aim to clarify what wrongful dismissal is, how it relates to gross misconduct, and to offer some practical guidance on what you can do if you are involved in such a case.

Remember to try our free Settlement Agreements Calculator to see how much you should get in your settlement in these circumstances.

What is wrongful dismissal?

Wrongful dismissal is a misleading phrase, not to be confused with unfair dismissal or constructive dismissal.

Not being paid your notice pay is technically known as Wrongful Dismissal. In practice it actually means that you were dismissed without being paid for your notice period.

For example, let’s say that your contract of employment stipulates that your employer has to give a month’s notice to terminate your employment. However,  your employer tells you that you are dismissed, that you should go home immediately and that you won’t be paid your month’s notice. That’s wrongful dismissal, and you could have a claim in the employment tribunal or, preferably, a settlement agreement to be negotiated.

The most common form of wrongful dismissal claim in the employment tribunal is when the employer argues that you were guilty of gross misconduct, but you argue that you were innocent, and the employer dismisses you without paying your notice period.

Top Tips

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  • 1
    Appeal any dismissal decision
  • 2
    Check your notice period
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    Keep records of your job applications

Getting another job during your notice period: Affect on your claim

Bear in mind that if you are fortunate enough to get another job during your notice period, then this would reduce any claim for compensation you might have in an Employment Tribunal.

That is because you have ‘mitigated’ your loss. Say your notice pay was worth £3000 net, but you earned £2000 net in the notice period, then you have only lost £1,000 net, so that is the value of your claim.

Of course you don’t have to disclose to your ex-employer the fact that you have got a new job prior to issuing tribunal proceedings (you need to declare it at that point) so unless they ask you then they may well assume that you haven’t.

In a strong case we would normally negotiate the payment of the notice pay plus a payment reflecting future loss as well, and such a deal would be enshrined in a settlement agreement.

Gross misconduct and wrongful dismissal

The most common form of wrongful dismissal claim in the employment tribunal is when the employer argues that you were guilty of gross misconduct, but you argue that you were innocent of gross misconduct.

You see, in gross misconduct scenarios at work, the employer is entitled by law to dismiss you without paying your notice pay. That is because by your actions you have effectively torn up the contract of employment, and therefore your entitlement to notice pay goes with it.

Extreme examples of gross misconduct include punching the boss or being caught with your fingers in the till.

More common examples can include for example being caught working for your company’s clients on the side or being spotted on social media in the Caribbean when you’re supposed to be tucked up in bed with the flu in Birmingham.

When to start negotiating in a misconduct case?

If you have already been dismissed for conduct issues (e.g. for gross misconduct), then the chances are that the time to negotiate has already passed. You will probably have to start Acas pre-claim conciliation, commence proceedings and try and negotiate while fighting a claim.

Maybe your employer will want to save money on legal fees and they will often make an offer on this basis, so you have a chance, but the money you receive may not be as much as if you had negotiated at an earlier stage.

Misconduct claims are difficult to win for employees in tribunals. The employer only needs to show that they acted reasonably and that their decision to dismiss for misconduct was within the ‘range of reasonable responses’ open to them in the situation, and they will win the case.

Therefore, if you are accused of misconduct and your employer is threatening dismissal as one of the options open to them, that’s a good time to negotiate.

Talking to your employer if you’ve been accused of misconduct

If your employer has not offered a protected conversation , or a without prejudice meeting, you should suggest it. In misconduct cases, it is often better to talk things through with your employer in a without prejudice meeting, rather than commence correspondence.

This is because people have a tendency to defend themselves in correspondence, or to accuse their employer of acting improperly, and in a negotiation where misconduct has been alleged, this is not the way to go about things.

Should I admit I’ve done something wrong?

If you have done something wrong at work then it can help your negotiating cause to admit to it. It is never easy to admit to ourselves that we have done something wrong, messed up or acted improperly, but it may be the only way of negotiating a settlement package. You don’t necessarily have to agree that what you have done is as serious or as extensive as your employer suggests.

Sometimes an apology and a promise to work hard to make things right would mean that the employer may not even dismiss you at all. So, if you don’t want to leave and the misconduct you have committed is not something so terrible that it can never be forgiven, contrition and an apology may save your job.

How should I close a misconduct negotiation?

So, you should arrange a without prejudice meeting, potentially admit some culpability in what has happened, apologise, but explain that you have taken legal advice and you don’t think it is enough to dismiss you.

Then say that you understand that, in the circumstances, your employer may wish you to leave and, if that’s the case, then you would be willing to consider leaving for a reference, your notice, and a number of months’ salary.

Believe us, your employer will appreciate that approach. They don’t want to go around sacking people and then dealing with the consequences. They may wish you to leave, but they will sincerely appreciate your behaviour in the without prejudice meeting, and will more likely than not engage with you in negotiations.

Rather than you fighting the case against you, being dismissed, and then calling a solicitor who will tell you that you do not have sufficient prospects of success to win an employment tribunal, you will have a reference, your notice pay and a sum of money to see you through to your next job. Which would you rather have?

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