Fundamental or Repudiatory Breach of Contract

/Fundamental or Repudiatory Breach of Contract
Fundamental or Repudiatory Breach of Contract 2012-06-10T14:53:10+00:00

Fundamental or Repudiatory Breach of Contract

For a [fundamental] or [repudiatory breach] of contract to have taken place, the employee would have to establish that the employer was guilty of something, which goes to the [root of the contract]. The test case for this was Western Excavating (ECC) Ltd v Sharp {1978} IRLR 27.

In laypersons terms, a [fundamental breach] of the employment contract allows the employee to repudiate the employment contract. The employee would resign with immediate effect, without working out their notice, due to the fact they “repudiate” the contract of employment. Therefore the employer will not be able to enforce the terms of the employee’s contract of employment, or make the employee work their notice period, which they would otherwise be legally obliged to do. This is known as “constructive dismissal”.

My wife and I both claimed “constructive unfair dismissal” due to the fact our employer had acted so badly towards us, that to have stayed and continued to have worked, would have been to have accepted the repudiation (acquiesced and affirmed the breaches).

Example: Let’s say your boss punches you in the mouth for no “reasonable reason” other than the fact he felt like it. You would be within your rights to repudiate the contract of employment with immediate effect, and leave your employer instantly (constructive dismissal). The reason you could give the Employment Tribunal, was that you feared for your [safety] and that your bosses unwanted conduct [harassment] posed a [risk of harm] to your “health”. Alternatively, if [you] chose, you could forgive your boss, kiss and make up, and put it all behind you. Should you choose the latter, you accept the repudiation (affirm the breach).

In the words of Lord Denning:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.”

“The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”

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