It is well established in employment law that if the employer commits a fundamental breach of contract, then the employee can resign in response to that breach and (subject to a length of service criteria of 2 years) claim constructive unfair dismissal. The employee loses that right however if, after an alleged breach of contract by the employer, instead of resigning they are found to have waived that breach by continuing to work, or otherwise acting to affirm the employment contract is still alive.
The High Court have recently reconfirmed that resignation on a lengthy notice period can constitute affirmation of an employment contract. In Brown and Anor v Neon Management Limited and Anor the Defendants breached the Claimant’s contracts of employment. In response, the Claimants resigned on notice (rather than with immediate effect) alleging repudiatory breach of contract. The High Court found that resignation on a lengthy period of notice (here 6 months or more) constituted an affirmation of the employment contract thus keeping it alive in the absence of further breaches of contract.
This is helpful clarification from the High Court, as there have over the years been many other decisions in which an employee works on, but is said to working under protest or raising a grievance, such that the Employment Appeal Tribunal have found that working on during notice does not necessarily always constitute a waiving of the breach.
Although that was good news for the employer in this case (and for employers generally) the High Court went on to find that, subsequently, during the notice period the employer then made unwarranted findings and allegations against the employees, without proper foundation, which amounted to a further fundamental breaches of contract, supporting the employee’s claims.
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