1) Which criteria need to be met by the claimant in a case involving wrongful dismissal?
INTRODUCTION
According to Ashgar Ali Mohamed (2004), "At common law, the employer-employee relationship is contractual; the employer may terminate the contract of employment by serving appropriate notice, as expressed in the contract or implied reasonable notice. Wrongful dismissal occurs when the employee is dismissed without notice or with inadequate notice".
SUPPORTING CASE: MASSEY V CROWN LIFE INSURANCE CO (1978)
According to HM Revenue and Customs UK, "Mr. Massey was the manager of a branch of the Crown Life Insurance Company of Canada from 1971 until 1973; he was an employee of the company. It paid him wages from which it deducted tax, NICs and graduated pension contributions. He also made contributions to the firm’s pension scheme".
Moreover, in 1973 by mutual consent "the company engaged him on a self-employed basis under a new agreement. His duties under this new agreement were almost identical to those under his previous contract of service. The only real differences were that he no longer made pension contributions and the company paid him gross without any deductions for tax etc. This arrangement continued until 1975 when the company dismissed him. Mr. Massey then claimed unfair dismissal".
DECISION OF THE CASE
The Industrial Tribunal decided that Mr. Massey was not employed under a contract of service and therefore could not claim unfair dismissal. The EAT upheld this decision, as did the Court of Appeal. (HM Revenue and Customs UK).

Based on the case, a dismissal occurred when Mr. Massey was dismissed immediately when his agreement with the company ended. The reason to this is because Mr. Massey was offered another job as a 'self employee in the company’ whereby there was no contract of service. Therefore, the company dismissed him with the fact that there was no contract of service but rather mutual consent between both parties.
The dismissal was with no short notice as there was no contract of service. However, according to Section 86(4) of the Employment Rights Act of 1996 "Employers must provide notification to an employee who has worked three months or longer, even if the actual work contract was for a period of one month or less". This means that Mr. Massey should have been given a notification because he was an employee for the company for more than one month.
The employer can justify the otherwise wrongful dismissal because Crown Life Insurance Company gave Mr. Massey a self-employed basis under a new agreement. For this reason, there was simply a mutual agreement but no contract of service was taken into account.
Crown Life Insurance Company dismissed Mr. Massey without notice or money in lieu of notice as there is evidence of gross misconduct whereby “the company paid him gross without any deductions for tax etc". Moreover, according to Section 86(3) of the Employment Rights Act of 1996 "The employer and employee can enter into an agreement to waive rights of notification and can provide a payment in lieu of notice".
This section, explains how both parties the employer and employee can come to a consensus by which the employer can provide notification of termination if not then the payment in lieu of notice must be provided.
If the worker was wrongfully dismissed by the employer, the worker can therefore claim for Compensation whereby, he/she may claim damages to compensate him/her for losses resulting from a breach of contract.

According to Sara & Allen 2009, “if the employee had worked during the damages period he would have received net, not gross, pay. Hence, under the common law rule set out in BTC v Gourley (1955) the court will deduct from the gross award a notional sum to represent income tax. Under the income tax (earnings and pensions) Act 2003 the first £30,000 of the net award is tax-free”.
If the net award exceeds that sum, the balance will be taxed again in the ex-employee's hands. Consequently, the court will add a sum to the non-exempt balance to guarantee that after payment of tax on the sum awarded, the ex-employee is left with an appropriate net sum (Shove v Downs Surgical plc (1984)).
In conclusion, employment tribunal cannot award more than £25,000 in damages for wrongful dismissal. There is no such restriction in the civil courts; with an employment tribunal one must comply with a strict three-month time-limit to claim wrongful dismissal. In the civil courts you have 6 years to file a claim.
The claimant is under a duty to mitigate their loss. For this reason, “the ex-employee must take a logical step to find other appropriate employment or become self-employed, otherwise damages will be reduced by the sum that could reasonably have been earned from new employment or self-employment during the damages period” (Sara & Allen, 2009).

2) Which criteria need to be met by the claimant in a case involving unfair dismissal?
UNFAIR DISMISSAL
According to Sara & Allen 2009, "an employee cannot claim unfair dismissal unless there has first been a dismissal recognized by law. Unfair dismissal law places restrictions on the ability of employers to dismiss employees for misconduct".
The Citizens Information Board states that, “Certain reasons for dismissal are considered to be automatically unfair. These include the following; * Membership or proposed membership of a trade union or engaging in trade union activities, whether within permitted times during work or outside of working hours * Religious or political opinions * Race, color, sexual orientation, age or membership of the Traveler community * Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth * Availing of rights under legislation such as maternity leave, adoptive leave, carer's leave, parental or force majeure leave”.

SOURCE: LEagle Consulting 2008.
SUPPORTING CASE: MARY BROWN V RENTOKIL LIMITED, [1998] IRLR 445
According to the European Court reports 1998, “In 1990 Mrs. Brown, who was employed by Rentokil as a driver (which she said involved heavy work) informed the company that she was pregnant and from 16 August 1990 submitted a series of four week certificates regarding various pregnancy-related disorders from which she, was suffering.
Mrs. Brown stopped working from mid-August of that year. On 9 November 1990 representatives from Rentokil informed Mrs. Brown that, following an independent medical examination, if she did not return to work by 8 February 1991 her contract would be terminated pursuant to a term of her contract entitling the company to terminate her employment if she took more than 26 weeks continuous sick leave.
Mrs. Brown did not return to work by 8 February 1991 and was accordingly dismissed while pregnant. Mrs. Brown fell outside the protection afforded by the Employment Protection (Consolidation) Act 1978 which ensured pregnant women could return to work after giving birth because she had not been continuously employed for a period of not less than two years prior to taking maternity leave.
The Extra Division of the Court of Session held that there was no discrimination under the Sex Discrimination Act 1975 because she had been discriminated on the basis of illness attributable to pregnancy. Mrs. Brown appealed”. (European Court reports, 1998).
The claimant has standing; the law protects women employees who are pregnant. All in all, the claimant of the case is an employee. Based on the case scenario it is considered as an automatic unfair dismissal case due to the fact that it involves a pregnant woman who was unfairly dismissed. However, Section 99 of the Employment Rights Act 1996 (“ERA”) states that “a woman who is dismissed by reason of her pregnancy, childbirth or maternity leave or other pregnancy related reason is treated as having been unfairly dismissed”. (Steen & co, 2012).

The claimant is dismissed under ERA S.95 (1) (a) whereby it states that, “the contract under which he is employed is terminated by the employer (whether with or without notice)”. Upon the employee establishing that he meets the requirements of one year's continuous employment and that he has been dismissed, the burden of proof shifts to the employer to establish the reason for the dismissal and that the reason falls within one of the fair reasons for dismissal, contained within s.98, ERA 1996.

The employer can establish a potentially fair reason S.98. (1), ERA 1996 in determining for the purposes of "Unfair Dismissal” whether the dismissal of an employee was fair or unfair, it shall be for the employer to show -

(a) The reason (or, if there was more than one, the principal reason) for the dismissal, and

(b) That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

According to Employment Law Solutions UK, “the employer can establish fair reasons by claiming that the employee was fairly dismissed under SOSR (some other substantial reason) whereby; * The temporary employee is dismissed to allow for the return of an employee who has been away because of medical or maternity suspension or pregnancy, childbirth or adoption leave; and * The employer informed the temporary employee in writing when they were employed that their employment would terminate on the return of the absent employee”.

According to ERA S.98 (4), “Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal was fair or unfair (having regard to the reason shown by the employer)

(a) Depends on whether in the circumstances (including the size and resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) Shall be determined in accordance with the equity and substantial merits of the case”.

Based on the case of “Mary Brown v Rentokil Limited, [1998]”, the employer was consistent in dismissing Mrs. Brown as she was unfit to perform her work due to her pregnancy. Mrs. Brown herself submitted ‘a series of four week certificates regarding various pregnancy-related disorders from which she, was suffering’. This proves that the employee was weak and even explained that her work was heavy due to her illness.

According to TSO Information & publishing solutions 2009, “The Acas Code of practice 2009 provides basic practical guidance to employers, employees and their representatives and sets out principles for handling disciplinary and grievance situations in the workplace”.

It is found that the employer did not act reasonably to his employee due to many reasons whereby the employer sent representatives to inform Mrs. Brown that her contract will be terminated if she continued to take her sick leave in more than 26 weeks.

The employer has failed to take into account the above requirements that are stated by the Acas Code of Practice 2009. For this reason the employee was unfairly dismissed by the employer because the employer failed to meet the above requirements.

THE ACAS CODE OF PRACTICE

SOURCE: Hill Dickinson 6th edition, page 14.

REMEDIES
There are three possible remedies for unfair dismissal; * Re-instatement- means getting the workers job back with no loss of money or security. Tribunals have the power to order reinstatement or re engagement. They must ask employees if they wish an order to be made, and can only make one if so requested. If no order is made, the tribunal must turn to the question of compensation. (Lewis & Sargeant, 2004). * Re-engagement- means getting another job with the same owner. The tribunal may order re-engagement and decide the terms, including the identity of the employer, the nature of the employment and the remuneration payable. (Lewis & Sargeant, 2004). * Compensation- a basic award calculated in a similar way to a redundancy plus a compensatory award to compensate the employee for the financial losses incurred as a result of the dismissal. Compensation for unfair dismissal usually consists of a basic award and a compensatory award. (Thompsons Solicitors, 2011).

According to Business database UK 2011, “From February 1st 2011, the maximum amount that the tribunal can award for a successful unfair dismissal claim will be £ 80,400”. As a result to this, employment tribunals have exclusive jurisdiction over unfair dismissal claims. The limitation period is 3 months.

3) What are the key distinctions between wrongful and unfair dismissal?
THE KEY DISTINCTIONS BETWEEN WRONGFUL AND UNFAIR DISMISSAL a) Contract vs. Statue * Wrongful dismissal- involves a breach of contract. * Unfair dismissal- involves a breach of statutory law.

b) Courts/Tribunal vs. Tribunal * Wrongful dismissal- One may pursue their claim for wrongful dismissal either in the civil courts or before an employment tribunal. * Unfair dismissal- One may only claim unfair dismissal in front of an employment tribunal.

c) Time Limits * Wrongful dismissal- This is the same for both unfair dismissal and wrongful dismissal - within 3 months of your last day of employment. Though, one may pursue their claim for wrongful dismissal either in the civil courts or before an employment tribunal and the time limit for filing in civil court is a lot longer - they have 6 years from the date they were dismissed. * Unfair dismissal- This is the same for both unfair dismissal and wrongful dismissal within three months of their last day of employment.

d) Service Qualification Period * Wrongful dismissal- In contrast, there is no service qualification period for wrongful dismissal. * Unfair dismissal- Only employees who have a year's continuity of service at the date of dismissal, or have been dismissed without notice and are within a week of gaining a year's continuity of service, may claim unfair dismissal. (Find Law UK, 2011).

e) Remedies * Wrongful dismissal- Since wrongful dismissal is founded on contract law; it is subject to standard rules for contractual damages. Therefore damages cannot be recovered that do not arise naturally from the breach. And damages should put you, so far as money can, in the same position as if the contract had been performed. There is no limit on the amount of damages a civil court can award for wrongful dismissal. But an employment tribunal cannot award more than £25,000. * Unfair dismissal- There are two remedies available for unfair dismissal: re-instatement / re-engagement and compensation. Unlike wrongful dismissal, compensation for unfair dismissal consists of two elements -- the basic award and the compensatory award. (Find Law UK, 2011).

4) Can a worker claim successfully for both wrongful and unfair dismissal?
One may claim both wrongful and unfair dismissal, whereby any money received for wrongful dismissal will be cancelled out by the amount received for unfair dismissal (and vice versa) to stop one from receiving double compensation.
As a result, a claimant has a choice to either claim for wrongful dismissal or unfair dismissal. Certain circumstances may be taken into consideration. For instance if the employees are highly paid and entitled to a long period of notice, they would be advised to claim for wrongful dismissal because there is no ceiling on the amount of possible compensation.

REFERENCES * Sarah Riches & Vida Allen (2009) “Business law”, 9th ed. Pearson Longman. * David Lewis & Malcolm Sargeant (2004) “Essentials of employment law”, 8th ed. * Find Law UK (2011), “Wrongful dismissal” [Online] Available from: http://findlaw.co.uk/law/employment/wrongful_dismissal/500174.html [Accessed on the 20th March 2012]. * HM Revenue and Customs, “Case Law: Massey v Crown Life Insurance Company [online] Available from: http://www.hmrc.gov.uk/manuals/esmmanual/esm7070.htm [Accessed on the 20th March 2012]. * Find Law UK (2011), “Can I claim both unfair dismissal and wrongful dismissal? What's the difference?” [ONLINE] Available from: http://findlaw.co.uk/law/employment/wrongful_dismissal/500170.html [Accessed on the 21st March 2012]. * Find Law UK (2011), “What are the differences between wrongful dismissal and unfair dismissal?” [ONLINE] Available from: http://blogs.findlaw.co.uk/solicitor/2010/04/what-are-the-differences-between-wrongful-dismissal-and-unfair-dismissal.html [Accessed on the 21st March 2012]. * Direct Gov, “unfair dismissal” [online] Available from: http://www.direct.gov.uk/en/employment/redundancyandleavingyourjob/dg_10026692 [Accessed on the 21st March 2012]. * Citizen’s information (2012), “Fair grounds for dismissal” [online] Available from: http://www.citizensinformation.ie/en/employment/unemployment_and_redundancy/dismissal/fair_grounds_for_dismissal.html [Accessed on the 22nd March 2012]. * Legislation Government UK, “Employment Rights Act 1996” [ONLINE] Available from: http://www.legislation.gov.uk/ukpga/1996/18/section/95 [Accessed on the 22nd March 2012].

* Steen & Co Employment solicitors (2012), “Pregnancy Related Dismissals- with detailed coverage of the law relating to redundancy when on maternity leave” [online] Available from: http://www.steenandco.co.uk/pregnancy-related-dismissals-_51/ [Accessed on the 22nd March 2012]. * Employment law solutions UK (2010), “Unfair Dismissal” [online] Available from: http://www.employmentlawsolutionsuk.com/Employment%20Law%20A-Z/Unfair%20Dismissal.html [Accessed on the 23rd March 2012]. * Thompsons Solicitors (2012), “unfair dismissal and redundancy” [online] Available from: http://www.thompsonstradeunionlaw.co.uk/information-and-resources/unfair-dismissal-redundancy.htm [Accessed on the 23rd March 2012]. * Legal centre UK (2012), “ACAS Code of Practice - Disciplinary and Grievance Procedures” [online] Available from: http://www.legalcentre.co.uk/employment/guide/ACAS-Code-of-Practice-Discipline-and-Grievance-Procedures/ [Accessed on the 23rd March 2012]. * Business database UK (2011), “New unfair dismissal compensation rates announced” [online] Available from: http://businessdatabase.indicator.co.uk/unfair_dismissal/new_unfair_dismissal_compensation_rates_announced/UKTAPSAR_EU130203/88/related [Accessed on the 24th March 2012].