Commentary

(3) Wrongful constructive dismissal of the employee by the employer

Division AII Contract of Employment
| Commentary

(3) Wrongful constructive dismissal of the employee by the employer

| Commentary

(3)     Wrongful constructive dismissal of the employee by the employer

Just as the employer may lawfully dismiss without notice if the employee commits a repudiatory breach of contract, so too the employee may lawfully quit without notice if the employer commits a repudiatory breach. This is thus the mirror image of the situation where the employer accepts an employee's repudiation. Resignation may be interpreted as an election by the employee to treat themselves as discharged from their contractual obligations by reason of the employer's breach and an acceptance of the breach.

This type of termination might have been called 'summary resignation'. Instead, it tends to be called, at least for statutory unfair dismissal purposes, 'constructive dismissal'. For the latter, it is established that a contractual test is to be applied: Western Excavating (ECC) Ltd v Sharp [1978] QB 761, [1978] ICR 221. Thus, the test as to whether the employer acted in repudiatory breach is to be assessed objectively in accordance with the law of contract and not by reference to a reasonable if mistaken view of the situation or what is reasonable or fair. In a well-known passage in Western Excavating, Denning LJ said about the concept of repudiatory breach that:

''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

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