The Difference Between Wrongful Dismissal, Unfair Dismissal, and Wrongful Termination

Many Americans do not realize this, but unless you happen to live in the state of Montana, you are assumed to be working “at-will.” There are some upsides to at-will employment. It means you can leave your job at any time for any reason without legal consequences. There is a flip side. It also means that your employer can fire you for almost any cause or no cause at all. The federal government and the state of California provide some protections, but probably not as many as you think. What are your legal options if you feel you were fired unfairly? In this article, we will review three common terms you might have come across: Unfair Dismissal, Wrongful Dismissal, and Wrongful Termination. We will explain what these terms are, if they apply to you, and your legal employment rights.

What Is Unfair Dismissal?

In 1996, the government passed a sweeping employment bill called the Employment Rights Act, which provides comprehensive protection for workers and declares that employers can only fire workers for five clearly defined reasons. If an employee is fired for any other reason, they can bring a claim of unfair dismissal against their employer to an employment tribunal.

Never heard of an employment tribunal? That is because we are not talking about the United States government. The Employment Rights Act was passed in the United Kingdom. We do not have any similar law in the United States, nor do employees have the same protections as our tea-sipping, crumpet-nibbling friends on the other side of the Atlantic. Unfair dismissal is not a term with any legal power or precedent in the United States.

What Is Wrongful Dismissal?

Like Unfair Dismissal, the term “Wrongful Dismissal” is typically used overseas in the United Kingdom. It refers to an employer firing an employee for reasons that are not laid out in an employment contract. Here in the United States, we tend to use the term “Wrongful Termination” when we talk about breach of employment contracts.

What Is Wrongful Termination?

While the United States does not have a comprehensive Employment Rights Act like the United Kingdom, we do operate under certain federal guidelines that prevent employers from firing people in specific scenarios. Additionally, each state and locality can also implement more stringent employment rules. It should come as no surprise that a progressive state like California offers workers protections beyond federal law. In the next sections, we will look at specific situations that qualify as wrongful termination.

Breach of Contract

No employer is required in the United States to offer employees an employment contract, but if they do, then they must adhere to the disciplinary and termination protocols set out forth in the contract except in cases where an employee commits gross misconduct. (I would not suggest showing up to work in your underwear or smashing the copier you hate with a baseball bat.)
Union workers are often able to negotiate for a collective bargaining agreement that includes the right to disciplinary proceedings and protects employees from at-will termination. Similarly, civil servants who work for government agencies are often covered by civil service protections.
If you have an employment contract and are fired, review your contract carefully to determine if your employee followed all disciplinary procedures. If not, you may have a wrongful termination case.

Protected Class

Even if you do not have an employment contract with your employer, that does not mean your employer can just fire you for any reason they want. Specifically, federal law states that an employer cannot fire an employee based on their:

• • Gender
  • Race
  • Nationality
  • Religion
  • Pregnancy status
  • Disability
  • Age
  • Citizenship status
  • Genetic information
  California goes even further, adding these protected classes to its state employment laws:
  • Ancestry
  • Marital status
  • Sexual orientation
  • Gender identity
  • AIDS/HIV status
  • Medical conditions
  • Political activities or affiliations
  • Military or veteran status
  • Status as a victim of sexual assault or domestic violence

Whistle Blowers

If you notice that your employer is engaging in illegal, discriminatory, or dangerous behavior, a variety of federal laws and statutes protect your right to alert authorities without fear of retribution. If your employer does fire you, then you may have a case for wrongful termination.

Implied Contracts

California is one of a handful of states that allows for wrongful termination complaints against employers in cases of “implied contract.” An implied contract is a contract that is not official but that is understood by both the employer or employee. For example, if your employer promises not to fire you without two warnings, that is an implied contract. So is an employee handbook that lists just causes for termination.

Public Policy

Similar to the whistleblower protections, California says that you cannot be fired for refusing to commit, cooperate with, or engage in criminal activities on behalf of your employer. This rule also protects you from cooperating in “socially undesirable” behavior on behalf of your employer. If your employer asks you to “cook the books” and you refuse, you cannot be fired.

Wrongful Discharge

Under California’s Fair Employment and Housing Act, you cannot be fired for filing a harassment or discrimination complaint against your employer, testifying against your employer in a harassment or discrimination case, or opposing harassment or discrimination of others in the workplace.

Wrongful Constructive Determination

Sometimes an employer cannot find a reason to fire an employee who is protected by an employment contract. In rare circumstances, the employer will try to make working conditions so terrible that they force the miserable employee to leave the company.

Even if you are not fired, you can still sue for wrongful termination.

Why File a Wrongful Termination Lawsuit?

No one likes getting fired, and you may feel that your employer has treated you unfairly. However, you must be able to prove that you were wrongfully terminated in the legal sense of the term in order to receive reparations from your employer. If you have a case, you should strongly consider speaking with an attorney who specializes in labor law.

First, you deserve justice. Getting fired is an emotionally destructive experience. It can hurt your confidence and self-esteem, as well as your job prospects, making it more difficult for you to find a new job and maintain financial security.

Second, do not let your employer get away with employee abuse. If they wrongfully terminated you, chances are they will do the same thing to other employees. If no one stands up, they will keep repeating the same behavior with impunity.

Finally, you can also receive deserved compensation. Most wrongful termination cases seek compensation for lost wages, emotional distress, and attorney fees. Your attorney may also ask for punitive damages to punish your employer for their illegal behavior.

When your looking for a qualified labor attorney in San Diego or Southern California- Contact Saba Law.