Constructive Dismissal and Affirmation of Contract

28 May 2014

Can an employee be held to have affirmed the contract (and hence have lost any claim for constructive dismissal) if he or she gives longer than the contractual minimum notice period?

Yes, held the EAT in Cockram v Air Products Plc.

With thanks to Daniel Barnett’s employment law bulletin which summarises the case:

The Claimant resigned his employment in response to what he considered to be a fundamental breach by the Respondent of the implied term of trust and confidence, but he gave 7 months notice rather than the 3 months required by his contract.

The EAT re-iterated that section 95(1)(c) of the Employment Rights Act 1996 varies the common law position by preventing the giving of notice when resigning from being automatically an affirmation of the contract.

Nonetheless, it held that the concept of affirmation remained relevant to the statutory question of whether there had been a constructive dismissal (as defined by section 95(1)(c) ERA). This would always be a fact sensitive question, and there was no rule that post-resignation conduct (such as working a long notice period) was excluded from consideration.

The Claimant had, for his own financial reasons, given a longer notice period than was contractually required, and had thereby affirmed the contract. His constructive unfair dismissal claim was therefore struck out.