Following on from part 1 of this series (a post on when an employer commits a repudiatory breach of contract) on the law of constructive dismissal, today’s post is on the employee’s acceptance of their employer’s repudiatory breach.
The first (rather obvious) point to note is that the contract of employment between the two parties is not terminated until the employee accepts the employer’s repudiatory breach of contract. This acceptance doesn’t have to communicate their acceptance of the repudiatory breach to their employer expressly (i.e. by written or spoken word) but the fact that they have accepted the breach must be unambiguous. It’s best practice in circumstances where there might be ambiguity to write to your employer and resign. If you do otherwise it may cause problems relating to whether and when you’ve accepted your employer’s breach (which is important for calculating limitation dates, compensation etc.). What often causes problems is if there’s been a “flash in the pan” resignation – where an employee has resigned in the heat of the moment. In these instances the Employment Tribunal will look at the circumstance surrounding the resignation and decide whether it was reasonable for the employer to assume that the employee had resigned without further confirmation of such. If it was unreasonable for the employer to assume that the employee had resigned (i.e. if an employee works in a setting where there are often ‘blow ups’ between employees, antagonistic relationships and high-stress situations) then there may not be deemed to have been an acceptance of the breach by the employee.
The only alternative to an acceptance of the employer’s repudiatory breach is for the employee to ‘waive’ the breach. If the employee waives the breach then he is affirming the contract of employment and insisting on the further performance of the contract. The affirmation can be express or implied. It would be express if, for example, the employee wrote to the employer and said that even though he believed that his contract of employment had been technically breached that he still wanted to continue working under the new terms. Implied affirmation would take place if, for example, the employee informed their employer that they wished the terms of their contract to be carried out (i.e. by taking paid holiday) or by acting in a way which could only be construed as consistent with continued employment. This would happen if the employee accepted their next pay packet or went to work the next day.
An important point to note here (and it is something that we’ll cover later in this series) is that the employee must not take too long to affirm or waive the repudiatory breach by their employer. However, the employee can continue to preserve their right to terminate the contract of employment by working “under protest”. The employee must make clear their objection to the employer’s breach of their contract and that they are considering what action they will take as a result. Again, the “preservation” of this right only exists for a limited amount of time, though for how long it will persist depends on the facts of the particular case.