When does the giving of notice prevent a successful claim for constructive dismissal?
Thursday 19th June 2014
Constructive dismissal arose out of the Common Law in that following an employer's fundamental breach the employee was entitled to resign and claim constructive dismissal without giving notice.
The Employment Rights Act extended this principle to allow employees to claim constructive dismissal even when they work their notice period.
In a recent case of Cockram v Air Products plc a senior employee resigned and gave seven months notice despite only being contractually obliged to give three months.
The Employment Tribunal struck out the claim and the EAT agreed. It was said that it will always be fact sensitive as to what amounts to affirmation of the contract preventing a successful claim for constructive dismissal but the main arguments for affirmation ion this case were the length of the notice given and the fact it was deemed he had given the long notice for his own financial reasons (to continue receiving salary).
The EAT rejected the employees argument that the Employment Rights Act, by extending the principle of constructive dismissal to situations where notice is given, did not mean that post termination affirmation of the contract was not possible. Affirmation of the contract, at any point, will be possible but will be fact dependent.
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