Under UK employment law, a breach of contract arises when either the employer or employee fails to fulfil their contractual obligations.

When an employee engages in conducts that contravene either explicit terms of the employment contract or the underlying principles of fairness and good faith, the employer must assess the nature and severity of the breach before taking action.

Contractual breaches fall into two main categories:

• Express Breaches: Violations of one or more specific contractual clauses;
• Implied Breaches: Breaches of duties established under common law, such as mutual trust, loyalty, and confidentiality.

Examples of express breaches include:

• Failure to perform duties as outlined in the employment contract;
• Resignation without serving the proper notice;
• Violation of post-termination restrictive covenants.

Examples of implied breaches include:

• Disclosure of confidential company information;
• Engaging in secondary employment, especially where competitive;
• Conduct damaging to the trust-based employer-employee relationship.

Notably, a single act may simultaneously breach multiple implied duties, thereby compounding the seriousness of the misconduct.

Employer Remedies and Actions

Employer responses should be proportionate to the seriousness of the misconduct:

• Minor breaches may warrant informal resolution, including a conversation or a verbal warning;
• Serious breaches may necessitate a formal disciplinary procedure, potentially leading to summary dismissal (gross misconduct) and / or a civil action for damages.

Regardless of the breach level, any disciplinary action must follow a fair process that respects the employee’s right to respond and defend themselves.

Disciplinary Procedure According to the Acas Code of Practice

The Acas Code of Practice outlines a structured approach to disciplinary action, designed to ensure fairness and legal compliance. The key stages are:

1. Initial Assessment: Determine whether the matter can be resolved informally.
2. Investigation: For gross misconduct allegations, a thorough fact-finding process is essential.
3. Formal Notification: The employee must receive written notice detailing the allegations, supporting evidence, and a date for a disciplinary hearing.
4. Disciplinary Meeting: The employee has the right to respond, explain their conduct, and be accompanied if desired.
5. Decision: The outcome should be based on collected evidence, relevant precedents, and the principle of proportionality.
6. Right of Appeal: The employee must be allowed to appeal the decision.

Examples of gross misconduct include fraud, serious negligence, violent behaviour, and wilful disregard for company policies.

Conclusion and Legal Recommendations

In cases of suspected misconduct, the employer should:

• Initiate internal investigations promptly;
• Gather and preserve all relevant documentation;
• Formally notify the employee of disciplinary proceedings;
• Ensure the procedure is compliant with the Acas Code of Practice;
• Make decisions based on the severity of the breach and ensure they are proportionate.

Failure to follow the proper disciplinary process may expose the employer to legal claims for unfair dismissal or constructive dismissal.

In more complex or borderline cases, employers are strongly advised to seek legal advice —both for examining employment contracts clauses and for advice on managing  the disciplinary process.

By: Lucia Zeleznik, Lawyer and Solicitor in London

The Ascheri Group’s professionals can provide clarifications or elaborate on specific situations. To receive more information or request a quote for an initial online consultation, please contact us at info@ascherigroup.uk.