Breach of Contract

There are a number of different ways an employer can breach your contract of employment. Throughout this page, we will try to highlight some of these and give you a deeper understanding of your rights as an employee and clarify how to claim for some of these issues in practice.

Mutual Trust and Confidence

One of the implied duties that exist in an employment relationship is the duty of mutual trust and confidence. In the case, Morrow v Safeway Stores one of the conclusions were that "...an employer will not, without reasonable cause, act in a manner that is calculated and likely to undermine the relationship of trust between the parties or act in a manner that is likely to seriously damage that relationship...". This is a great point to be aware of in regards to any potential grievances you might want to submit to your employer as a breach of mutual trust and confidence has been classed as a fundamental breach of contract giving you the right to end it.

I complained and now I'm being performance managed

As soon as you have submitted a grievance a responsibility will be placed on your employer to not act in any way that might breach mutual trust and confidence. Examples of acts by the employer that can constitute this are suddenly treating you in an unfair or unreasonable way. In some cases, the employer might even try to punish you by invoking their capability procedures and argue that you are not doing your job to the level that is expected and as a result try to fire you. Make sure you follow the advice in the capability procedure article to protect yourself as much as possible from this risk.

Omission to Act

An omission to act occurs when rather than actively doing something the employer has failed to do something that it should have done. An example of a situation could be not taking a grievance seriously or properly investigating it after it has been submitted. You normally have to allow some time for the employers to do this and most grievance policies will state an estimated time before you should expect to hear back normally dependent on the severity of the case.

The employer is not listening

Once you have submitted a grievance the employer has a responsibility to take reasonable steps to, and to act with due care, to fix or mitigate your concerns. If you are employed by a large company they will have more resources and therefore also has a higher expectation placed upon them in terms of what a court would consider being reasonable. The case W A Goold (Pearmak) Ltd V McConnell (EAT 28 Apr 1995) highlighted some failures by the employer that might justify a constructive dismissal claim:

  1. An employer fails to reasonably adhere to the terms of a written grievance procedure;
  2. An employer fails to deal with a grievance at all or in an unreasonably late manner;
  3. An employer produces an unreasonable outcome to an employee’s grievance; or
  4. An employer fails to allow the employee to appeal against a grievance outcome.

Harassment

If your grievance is in regards to harassment and your employer is not taking your claim seriously the case Wigan Borough Council V Davies (1979 ICR 411) made it quite clear that the employer needs to provide reasonable support to ensure that an employee can carry out his/her job without harassment or disruption by fellow workers.

The harassment hasn't stopped and I don't know what to do

Your employer has to take claims of harassment seriously to avoid a potential constructive dismissal claim as a result of their breach. The employer might also be vicariously liable for the act of harassment, even if it was just one single incident (Insitu Cleaning Co Ltd v Heads), if they have a policy against harassment yet failed to take other reasonable steps to prevent it (Canniffe v East Riding of Yorkshire Council), if they didn't think it was serious enough (Reed v Steadman) and if they fail to protect you after you complained and thereby exposed you to further harassment (Fletcher and Steele v Cannon Hygiene Ltd).

Vicarious responsibility

An employer is responsible for acts committed by supervisory employees in the normal course of their employment. If a senior manager or supervisor in the business does something that would constitute a fundamental breach then the employer can be held liable (Hilton International Hotels (UK) V Protopapa). This is despite the fact that the person may not be senior enough to make a decision on whether to fire you themselves.

Make sure the director knows he's responsible

Make it clear in any grievance scenario that not only will you hold the person who committed the act responsible you will also hold the company responsible for the acts which in turn might equate to a breach of contract.



Updated: 28th April, 2021
The Site cannot and does not contain legal advice. The legal information provided is for general informational and educational use only and is not an alternative to consulting a solicitor.
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