Addleshaw Goddard

UK 200 2013 position: 23

Employee waived right to claim constructive dismissal by giving more notice than required

The Employment Appeal Tribunal (EAT) has held that a claimant lost his right to claim constructive dismissal where he gave his employer considerably longer notice of termination than he was obliged to do under his contract of employment. The EAT rejected an argument that once an employee had tendered his resignation, it was not possible for him to affirm the contract. Rather, the EAT held that the question of affirmation was fact sensitive. In this case, the fact that the claimant had given additional notice for his financial interests was pertinent (Cockram v Air Products plc).

Where an employer commits a fundamental breach of the employment contract, the employee can either: (i) waive the breach (known as ‘affirming’ the contract) and continue the employment relationship; or (ii) accept the breach, terminate the employment relationship and bring a claim for constructive unfair dismissal in the employment tribunal. Where an employee elects to accept the employer’s breach, he must resign in response to that breach and must do so promptly (or he risks being deemed to have affirmed the contract). However, it remains open to the employee to resign with notice. Section 95(1)(c) of the Employment Rights Act (ERA) provides that an employee is constructively dismissed where he resigns with or without notice in response to an employer’s repudiatory breach of contract…

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