In a case of constructive dismissal, the ordinary contractual rule applies; the wronged party may give the other party an opportunity to remedy the breach. In doing so he does not waive the breach and thereby affirm the contract.
Browne-Wilkinson P said: ‘Although we were not referred to the cases outside the field of employment law, our own researches have led us to the view that the general principles applicable to a repudiation of contract are as follows. If one party (‘the guilty party’) commits a repudiatory breach of the contract, the other party (‘the innocent party’) can choose one of two courses: he can affirm the contract and insist on its further performance or he can accept the repudiation, in which case the contract is at an end. The innocent party must at some stage elect between these two possible courses: if he once affirms the contract, his right to accept the repudiation is at an end. But he is not bound to elect within a reasonable or any other time. Mere delay by itself ( unaccompanied by an express or applied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged it may be evidence of an implied affirmation. … Affirmation of the contract can be implied. Thus, if the innocent party calls on the guilty party for further performance of the contract, he will normally be taken to have affirmed the contract since his conduct is only consistent with the continued existence of the contractual obligation. Moreover, if the innocent party himself does acts which are only consistent with the continued existence of the contract, such acts will normally show affirmation of the contract. However, if the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his right to accept the repudiation or in only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation.’
Judges:
Browne-Wilkinson P
Citations:
[1981] IRLR 443, [1981] ICR 823
Jurisdiction:
England and Wales
Citing:
Cited – Farnworth Finance Facilities Ltd v Attryde 1970
Mr A bought a motor-cycle on hire-purchase. Mr Attryed had ridden this bicycle for 4,000 miles. Even after he got it back from the makers he had used for five or six weeks and had ridden 3,000 miles on it. He had complained from the beginning of the . .
Cited by:
Cited – Bruce Anchor (Scotland) Ltd v Turbert EAT 7-Sep-2001
The employer appealed a decision that they had constructively dismissed the claimant. They said that by delaying her resignation, she had affirmed the contract. She had been off work and expected to return only after a length of time for . .
Cited – Bournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
Cited – Buckland v Bournemouth University Higher Education Corporation CA 24-Feb-2010
The claimant had been dismissed from his post as chair of archeology after criticism of his marking practices. Though a report vindicated him, the respondent continued with disciplinary procedures. He claimed unfair dismissal. The EAT had allowed . .
Applied – Fereday v South Staffordshire NHS Primary Care Trust EAT 22-Jul-2011
EAT UNFAIR DISMISSAL – Constructive dismissal
The Claimant considered that she was treated in a way which was in fundamental breach of her contract of employment. She invoked the grievance procedure, which . .
Cited – Waltons and Morse v Dorrington EAT 19-May-1997
The employee had complained of her working conditions, particularly at having to work in an environment polluted by others smoking.
Held: The correct term to be implied into her contract of employment to deal with the complaint in this case, . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 24 July 2022; Ref: scu.181814