Commentary

(c) The employee's remedies

Division BI Pay
| Commentary

(c) The employee's remedies

| Commentary

(c)     The employee's remedies

(i)     At common law

Where the employer fails to pay the wages due under the contract, whether in whole or in part, the employee has a number of options at common law. Firstly, he may simply (although no doubt reluctantly) accept the situation and agree to a variation of his contract so that he is thereafter paid at the lower sum. Secondly, he may affirm the contract by continuing to work, but do so under protest, and then sue for breach of contract (or alternatively bring an action in debt for services rendered) in the civil courts. Thirdly, if the employer's conduct in paying short wages amounts to a repudiatory breach of contract then ordinary contractual principles apply. This means that the employee (as innocent party) may accept the employer's repudiatory breach by resigning without notice and then claim he has been constructively dismissed: see Geys v Société Générale [2012] UKSC 63, [2013] 1 AC 523, [2013] IRLR 122, discussed at AII [463] ff.

So far as the first option is concerned, the parties may come to an express agreement to vary the contract to allow for payment of a lower sum, in which case the position is clear cut. However, difficulties arise where there is no such agreement. If the employer starts paying a reduced amount and the employee continues to work without formal complaint, can the employee then

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