The Employment Appeal Tribunal (EAT) has decided that an employee who gave far more notice of termination than his contract of employment required lost the right to claim constructive unfair dismissal by doing so.
In order for an employee to claim constructive dismissal, the employer must have committed a fundamental breach of the employee’s contract and the employee must resign ‘with or without notice’ in response to this breach. An employee can, however, waive the breach by continuing to work under the contract; this is known as affirming the contract.
In this case the claimant, who was a director with his employer, gave notice of his resignation following a decision about his grievance which he was dissatisfied with. Rather than giving three months’ notice (as required by his contract) he gave seven months’ notice, apparently due to his own concerns about his ability to find another job quickly. By giving notice far in excess of what was required under his contract, it was held that the Claimant had in fact affirmed his contract.
The EAT stressed that whether an employee has affirmed their contract will always be fact-sensitive. Therefore, it would be dangerous to take from this case that there is any particular period of time one might work on after a breach of contract that would generally be fatal to claiming constructive dismissal. The period of notice given and the reasons for doing so must be considered in the individual circumstances of the case.
It is well established that the longer the employee delays resigning in response to a breach of contract, the less chance they have of being successful with a constructive dismissal claim. It now appears the same may be true in respect of not just submitting your resignation, but also in respect of actually leaving.
However, there is no reason to think that an employee would prejudice their position at the Employment Tribunal by giving and working the notice period provided for in their contract of employment.
Further details on the case can be found here.