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Emma O'Connor
Emma O'Connor,
HEAD OF TRAINING
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Does working your notice prevent a constructive dismissal claim?
30 July 2014

What is constructive dismissal?

Constructive dismissal occurs where an employer’s behaviour or failure to comply with a contractual entitlement is said to breach an employee's contract of employment and that breach is sufficiently serious so as to justify the employee resigning. An employee who resigns in response to such a breach may have a successful claim for constructive unfair dismissal. The breach may be a breach of an express term contained within the employee's written contract of employment, or it may be a breach of an implied term.

Cockram v Air Products Plc

In Cockram v Air Products Plc, an employee resigned in response to what he claimed was a breakdown in the implied term of trust and confidence between him and his employer. Rather than resigning with immediate effect, Mr Cockram gave 7 months' notice, rather than the 3 months required by his contract. After his employment ended, he claimed that he had been constructively dismissed. The reason he gave for working longer notice was that he did not have another job to go to and needed to work for financial reasons.

The Tribunal and the EAT found that Mr Cockram had accepted the employer’s breach of contract by giving longer than his contractual notice period; therefore, he could not argue he had been constructively unfairly dismissed.

Does this mean an employee must always resign without giving notice?

No - the EAT confirmed that an employee does not have to resign without notice in order to argue he has a claim for constructive dismissal. However, because in this particular case, Mr Cockram gave seven months' notice rather than three months' notice - for his own financial reasons – he had accepted any breach of the employment relationship by the employer (known legally as ‘affirmation of the contract’). Whether the employee can be said to have accepted the employer’s breach will depend on the facts of each case including the length of notice given and the reason for it.

Comment

Constructive unfair dismissal claims are difficult for employees to prove and this case reaffirms the position that whether there has been a breach of contract – and whether the employee has accepted the breach – will depend on the facts of each case. However, employers should be wary as just because an employee chooses to work their notice does not mean they are precluded from bringing a claim for constructive unfair dismissal.

For further information, please contact our Employment Team on 0118 952 7284 or submit an enquiry.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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