Unfair dismissal claims? We’ve all done a million of them. Maybe not that many but I am simply applying the same exaggeration that goes onto most Claimant’s schedules of loss. The Claimant wants to go into the nuts and bolts of the claim and to prove that he or she has not acted in a manner which merited dismissal and you patiently explain that the Tribunal Judge, an example of deflation from the full Tribunal, is not going to be making findings about that as all the Judge has to do is consider whether the reason in the Respondent’s mind was misconduct or another potentially fair reason followed by applying the section 98(4) reasonableness test. The judge will consider the Burchell test in that context and apply the reasonable band of responses. “Mr or Miss X”, you will say, “the Judge will not have any interest in whether you are a thief or not”.
But add in a wrongful dismissal claim and the game changes. The Judge needs to be sure that the conduct is of such a nature to justify summary dismissal if dismissed for gross misconduct which must necessitate a greater focus upon the acts of misconduct themselves the reasonable band of responses and the substitution test has no place here. It also follows that more evidence is required of the conduct itself if the Judge is to consider whether to apply contributory fault to a dismissal that is found to be unfair.
Tactically as a Claimant there would seem to be little to support a decision not to add a wrongful dismissal claim to your unfair dismissal claim as it opens up a further avenue of attack. If there is a long notice period and there is a risk that contributory fault or Polkey will apply then why not try and insulate that period with a wrongful dismissal claim which would be immune from deductions on the same. Be mindful of the £25,000 statutory cap for breach of contract claims that has stubbornly held firm since contract claims came within the province of the Tribunal in 1994.
It happened recently in a case I was undertaking that the Tribunal found that the dismissal was fair but wrongful. The potentially fair reason for dismissal was found to be the Claimant’s conduct and it was found that the Burchell test was met; procedurally it was not perfect but no material prejudice arose; and that the decision to dismiss fell within a reasonable band of responses. However looking at the conduct alleged summary dismissal could not be justified and accordingly the Claimant was due three months’ notice. Admittedly there was some very careful juggling of fact to come to this conclusion but it is worth remembering it is a possible outcome and to plan accordingly.