The breach of contract must be serious. A minor or trivial breach is not enough.
Not paying for work done is a useful example of how an employer might seriously breach an employee’s contract. Refusing to pay an employee is a fundamental breach of contract. If payment isn’t made an employee would be justified in resigning and claiming constructive dismissal. It is highly likely that such a claim would succeed.
Breach of contract may be caused by a single incident. It may also happen where there are a series of acts or a course of conduct over time which cumulatively amount to a serious breach of contract.
Most constructive dismissal cases are concerned not with an explicit or express term of the employee’s contract but an implied term of some kind. Implied terms are those that exist in a contract but are not written into the contract.
In constructive dismissal cases the implied term that employees most often rely on is a term which creates an obligation of trust and confidence between the employer and the employee. It is well established that such a term is present in every employment contract.
An employer can break this contractual term by, without reasonable and proper cause, acting in a way calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee.
Whether an employee relies on an express or implied term, the breach must, as was mentioned earlier, be serious. The legislation that creates the right to claim constructive dismissal, s.95 (2) (c) of the Employment Rights Act 1996, makes this clear. It says that the employer’s conduct must be such that the employee is entitled to leave immediately without giving notice (which contractually the employee is usually required to do).
Put another way the employee is allowed to break his or her contract by not giving notice because the employer has behaved so poorly. Notice may be given by the employee; the employee may want or need to give and work notice for financial reasons. The key question is whether the breach of contract would justify immediate resignation.