Employees cannot claim 'last straw' resignation and stay in job

TalkHR Comment: How often do you review and update your contracts of employment?

 

In a recent case, Cockram v Air Products it was held that an employee had affirmed the contract by giving and working notice that greatly exceeded his contractual notice period, solely for his own financial reasons. However, the case highlighted that if there is no limit on the period of notice that could be given, an employee could give many months' or even years' notice, in excess of their contractual notice period, but still have the right to claim constructive unfair dismissal.   To ensure your contracts of employment don't leave you liable to a constructive dismissal claim contact us today on 01495 687070 to arrange a free HR health check to see how we can help keep your business in line with current legislation.  

 

Hurry!!!  For a limited time only, like the British Summer we have a not to be missed offer on, HR in a Box on sale now for £595 plus VAT.

 

In the case Cockram v Air Products  the Employment Appeal Tribunal had to decide whether an employee who gave seven months' notice, instead of the three months required under his contract, had waived (given up) his right to claim constructive dismissal.

 

Law

 

Constructive dismissal occurs where employees terminate their employment contract (with or without notice) in circumstances in which the employer's conduct entitles them to bring the contract to an end without notice (section 95(1c) of the Employment Rights Act 1996). To establish constructive dismissal in a court or tribunal:

  • there must be a repudiatory breach (a breach of contract so serious it permits the innocent party to bring the contract to an end) of an express or implied term

 

  • the breach must have played a part in the employee's resignation

 

  • the employee must not delay too long before leaving, as a prolonged delay may be viewed as accepting the breach.

 

Facts

 

Cockram was unhappy that a grievance he had lodged about comments made to him by his line manager had been rejected. He regarded both the line manager's and company's conduct as wholly unacceptable and so serious that he had to leave. His contract required him to give three months' notice. He gave seven months' notice stating, "I have no other work secured to enable me to leave immediately and I need to work for a reasonable period of time and it is for this reason only that I am giving notice." He lodged a constructive dismissal claim on leaving.

 

Tribunal

 

The employer asked the employment tribunal to strike out the claim on the basis that Cockram had waived any alleged breach of contract because he had given - and worked - seven months' notice, a period significantly longer than the three months' notice required by his contract. The employment tribunal did strike out the claim finding that Cockram gave much longer notice than contractually required for his own financial reasons. By giving long notice for his own ends, rather than for any "altruistic" (unselfish) reason, he had affirmed the contract. Cockram appealed.

 

EAT

 

The EAT reiterated the legal principle that an employee wishing to resign and successfully claim constructive dismissal would have to resign without notice. However, it pointed out that the law does give employees the right to resign 'with' and 'without' notice, without this being treated as having affirmed the contract. The issue in this case was whether Cockram's contractual notice period could be varied to the extent of seven months.

 

Cockram argued that there was no limit on the length of notice that can be given in a constructive dismissal. The EAT rejected this. Whether the contract had been affirmed or not depended on the facts. All the circumstances may be relevant, including the length of notice given and the reason why it was given. So the employment tribunal had been entitled to find that Cockram had affirmed the contract by giving and working notice that greatly exceeded his contractual notice period, solely for his own financial reasons.

 

Comment

This is good news for employers. As the EAT highlighted, if there is no limit on the period of notice that could be given, an employee could give many months' or even years' notice, in excess of their contractual notice period, but still retain the right to claim constructive unfair dismissal. That cannot be the intention behind the legislation.

 

For employees in alleged constructive dismissal circumstances, the case highlights the need to adopt one of two approaches. They either need to give no notice at all, thereby greatly reducing any risk of affirming the contract; or they need to give the notice required under the contract, but don't give more notice than is contractually required. They should also make it clear that them giving and working notice is not an indication that the contract has been affirmed.

 

(Source: CiPD, 2014).

Error parsing XSLT file: \xslt\CWS_twitterStatus.xslt

Follow Us

talk HR on Facebook talk HR on Twitter talk HR on Linked-In talk HR on RSS feed