A key area of employment dispute that can be solved through mediation is wrongful dismissal. In legal terms, this is a claim for a breach of the employment contract entered into by both the employee and the employer. It differs from the term ‘unfair dismissal’ which is recognised as a statutory right and is ordinarily relevant for employees that have a minimum of two years’ continuous service.
For wrongful dismissal cases, the only considerations a court will take involve the terms and contractual obligations of the employer. The most common reason for these disputes is situations where an employee is dismissed without notice. This information should be laid out in the contract or, if it has not, will fall under the statutory minimum notice period requirements which state:
Advance notice must be given and cannot be less than one week for each year of service, starting at one week.
For legal cases, in order for a wrongful dismissal case to be accepted, the individual must prove both that:
- they were dismissed in breach of their employment contract or with less than the statutory minimum notice period given and;
- that they suffered a loss as a result such as a loss of wages
Why choose mediation for wrongful dismissal?
Historically, the first port of call for wrongful dismissal disputes was the courts. Animosity builds with both sides of the disagreement and eventually leads to hostility and an attempt to diverge blame on to the other side. Legal battles are notoriously a costly venture, adding to the expenditure of a business and, in some cases, the wrongfully dismissed employee. In situations when the press is given access to the court information, companies can see their brand name and reputation becoming tarred.
Mediation provides a time-efficient and low-cost alternative. It can be actioned early on in the process to potentially minimise the time loss and damage to a business or the employee. This form of conflict resolution provides confidentiality to all parties, an open platform to constructively share disagreements and the benefit of an impartial third-party mediator. Where resentment and dismissal of responsibility has begun to grow on either side, mediation affords the chance to objectively view each person’s role to better understand the reason for the dispute.
For example, when dismissal is caused by the minimising of staff numbers, an employer may find himself solely focused on the investment gain. Through mediation, the realisation of the damning effects this decision has had on his people could provide the insight he needs to better understand their upset.
Common results of mediation for wrongful dismissal
No two mediation sessions are the same. Although the structure may be similar, the goal is always to find an agreeable solution that is accepted by both parties. Pre-mediation sessions give each side the chance to build a level of trust and relationship with their chosen mediator. The limits of confidentiality and its importance will be discussed, as will the loose structure of the upcoming session.
During a wrongful dismissal mediation session, each party is given a chance to vent their disagreements in a safe and constructive place. The mediator is not there to provide solutions but to facilitate the meeting. The goal is to arrive at a solution that benefits both sides and allow each party to better understand the others grievances. In many cases, this opportunity to vent one’s upset freely and discuss the matter in a safe place means that a resolution is found quickly and the mediation session is a success. The mediator will generally provide advice based on their past experiences and raise suggestions as to how the dispute could be solved amicably.
Agreed results can be in the form of a monetary settlement, a formal apology or the reinstatement of an individual in their former post, for example.
Wrongful dismissal cases can be damaging to all parties involved. They can cause conflict, not only with the employee in question but also within the general culture of your business. Finding a respectable and mutual way to solve issues helps to solidify your organisation’s perceived drive to deal with conflict swiftly.
For more information about resolution conflict for wrongful dismissal cases, The Resolution People can provide all the information you need to proceed.