Constructive Dismissal and Affirming the Contract (1)

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The Problem

Constructive dismissal claims are known to be challenging claims to successfully bring. Showing there has been a fundamental breach of contract serious enough to warrant a resignation is hard enough. But there are other risks both employees and employers need to be aware of. The next two case reports illustrate the point.

What if an employee resigns on grounds alleged to amount to a fundamental breach of contract but chooses to give longer notice of their dismissal than the contractual minimum notice period?

The Principle

This is what happened in Cockram v Air Products Plc (2014).  Mr Cockram alleged there had been a fundamental breach by his employer of the implied term of trust and confidence but he gave seven months’ notice rather than the contractual three months (for his own financial reasons).  The fact that more notice was given than was contractually necessary was deemed by the EAT to be an affirmation of the contract and the alleged breach and thus the constructive dismissal claim was struck out.

The Practice

Whether a contract has been affirmed will always be a fact sensitive question but this case will deter employees from trying to be too clever around their notice if they think their contract has been genuinely repudiated.  It should also cause employers to think carefully if they ever need to defend such a claim – is there an argument that the employee, by their actions, has affirmed their contract or the breach?

For more information, help or advice please contact Tim Davies on 0191 211 7927.