untitled

Wrongful dismissal 373

so badly that he had committed a repudiation of the contract. The employer could accept
the repudiation and dismiss the employee without committing a breach of contract. It is
difficult to generalise from the cases, but employees have been held to repudiate the con-
tract by refusing to obey lawful orders, gross misconduct, neglect or serious breach of duty.
However, it must be stressed that each of these matters will not necessarily amount to a
repudiation which justifies dismissal. In each case the employment tribunal must consider
the facts and come to a decision.
In general, an employer can escape liability for wrongful dismissal, but not for unfair
dismissal, by giving the employee wages in lieu of notice.

Constructive dismissal

If the employer’s behaviour is so bad as to amount to a repudiation of the contract then the
employee can resign, without giving notice, and sue for wrongful dismissal. (As we saw
when considering unfair dismissal, the employee accepts the repudiation and this ends the
contract.) This is known as constructive dismissal.

How much notice?

The contract of employment will usually state the amount of notice required. In addition,
every employee is entitled to a reasonable period of notice, the length of which will depend
upon a variety of factors, such as the nature of the position and the length of service with
the employer.
ERA 1996 s. 86 lays down that employees are entitled to a minimum of one week’s notice
after they have been continuously employed for between one month and two years. After
being continuously employed for two years or more, employees are entitled to one week’s
notice for every year of continuous employment (up to a maximum of 12 weeks).
There will be no right to sue for wrongful dismissal if the employer and employee agree
to terminate the contract without notice. However, the employment tribunal would need to
be satisfied that the agreement was genuine and that the employee was not pushed into it
against his or her will.
Nor will there be a right to sue for wrongful dismissal if the contract was frustrated.
In Chapter 5 we saw that a contract will be frustrated if it becomes impossible to perform,
illegal to perform or radically different from what the parties contemplated when they made
the contract. A contract of employment can become frustrated by the imprisonment of the
employee or by long-term illness. In Egg Stores (Stamford Hill) Ltd v Leibovici (1977)an
employee of 15 years’ standing was off work for five months after a car crash. After paying
the employee’s wages for two months, the employer stopped doing so when another
employee was taken on. The Employment Appeal Tribunal held that, as regards a long-term

Length of continuous employment

Less than 1 month

1 month–2 years

2–12 years

Over 12 years

Notice entitlement

None

1 week

1 week per year worked

12 weeks

Table 13.1The minimum periods of notice to terminate a contract of employment