Employee Lost Right to Claim Constructive Dismissal by Giving Too Much Notice

An employee who gave longer notice than contractually required could not claim constructive dismissal. Giving longer notice meant that he had affirmed the contract and waived the employer’s breach.

In Cockram v Air Products PLC, C’s contract required him to give three months’ notice. He was unhappy with the outcome of a grievance and resigned, stating that he considered his employer to have been in fundamental breach of contract. He gave seven months’ notice, stating that he had no other work and needed to “work for a reasonable period of time and it is for this reason that I am giving notice.”

After his employment ended C brought an unfair dismissal claim. His employer sought to strike it out, arguing that C had waived any alleged breach of contract by giving significantly longer notice than required under his contract. The employment tribunal agreed and struck out the claim on the ground it had no reasonable prospect of success.

The EAT dismissed C’s appeal. The question of whether a party has affirmed the contract is fact sensitive and all the circumstances should be taken into account, including the length of notice given and the reason why notice was given. Where an employee gives more notice than contractually required, they are offering additional performance of the contract to what is required and that additional performance may be consistent with them affirming the contract. The employment judge had been entitled to find that by giving notice which greatly exceeded his contractual notice period, solely for his own financial reasons, C had affirmed the contract. 

The EAT rejected C’s argument that it did not matter how much notice he gave because it was not possible to affirm the contract once he had resigned.

This is a sensible decision and one that will be welcomed by employers. If there were no limit on the amount of notice that could be given, an employee could give many years’ notice, regardless of their contractual notice period, and still retain the right to claim constructive unfair dismissal. As the EAT pointed out, this could not have been Parliament’s intention.

Employees wishing to resign and claim constructive dismissal need to ensure that they do not do anything which might indicate that they are affirming the contract. In many cases they will choose to resign promptly and without notice, as this minimises the risk of affirmation. Although the Employment Rights Act 1996 preserves the right of an employee who considers that they have been constructively dismissed to resign on notice, this case makes it clear that employees should not give more notice than contractually required. If they do so, they are likely to affirm the contract and lose the right to claim constructive dismissal. Employees who do decide to resign on notice are also best advised to make it clear that working their notice should not be taken as an indication that the contract has been affirmed.