(a) Generally

(a)     Generally

At common law, the employer is entitled to dismiss its employee on the spot, without notice, for gross misconduct. The proper analysis is that the employee has committed a repudiatory breach of contract and the employer has accepted it. A failure to accept the breach where it is known about will be a waiver of the right to accept the breach and treat the contract as discharged. (Such will not be a waiver of the breach itself, for the employer may still sue upon the contract for any loss. What is waived is the right to accept the breach and treat the contract as at an end.) There will be no waiver, though, where the employer is misled by the employee as to the facts: Boston Deep Sea Fishing Co v Ansell (1888) 39 Ch D 339. Thus, at common law an employer may defend a wrongful dismissal claim on the basis of facts discovered after termination. We have already encountered the principle in Boston Deep Sea Fishing at paras [410.01], [424] and [425.03] and we will encounter it again at paras [443] ff and [447.07].

For a recent illustration of this principle see Wells v Cathay Investments 2 Ltd [2019] EWHC 2996 (QB), [2020] IRLR 281, HHJ Simpkins presiding. Two senior executives sued for wrongful dismissal. They claimed that they were entitled to be