Wragge Lawrence Graham & Co

UK 200 2013 position: 25

Constructive unfair dismissal: how much notice can an employee give?

By Yvonne Gallagher

When an employee resigns in circumstances where he is entitled to terminate his contract of employment by reason of the employer’s conduct, this is known as a ‘constructive dismissal’. Although the employee resigns, it is the employer’s conduct that terminates (repudiates) the contract.

In many constructive dismissal cases, the employee resigns and leaves his employment immediately. Since he is, in effect, accepting a termination that has occurred as a result of the employer’s action and is not himself giving notice, it is crucial therefore that the employee does not delay in resigning. If the employee continues to report to work, he is likely to be deemed to have waived the alleged breach of contract affirming the continuation of the contract.

However, section 95 of the Employment Rights Act 1996 modifies the common law position by allowing an employee to claim constructive dismissal even if notice is given. This statutory exception was added as otherwise ‘a man who was considerate enough to give notice was worse off than one who left without notice’…

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