The recent EAT case of Cockram v Air Products Plc concerns an employee who resigned claiming constructive dismissal following a repudiatory breach of contract by his employer. The employee gave longer notice than he was contractually required to do for financial reasons. He was required to give three months notice but in fact gave seven months notice citing the fact that as he had no work to go to her needed to give longer notice.
The issue arose as to whether by giving this longer notice he had affirmed the contract and waived the breach upon which he relied. The concept of constructive dismissal arises from s95(1)(c) of the Employment Rights Act where the employee terminates their employment with or without notice in circumstances where they are entitled to do so because of the employer’s conduct. This is where the employer is in fundamental breach of contract and the employee must accept that breach and resign in response to it doing so promptly to bring the contract to an end. It is always a question of fact as to whether it is appropriate for an employee to give notice and indeed work it in such cases. It is also open to the employee to waive the breach and treat the contract as continuing and affirm the contract. This usually happens where the employee delays for example.
Whilst fact sensitive in this case, the EAT said that by giving much longer notice than was contractually required the employee had affirmed the contract and waived his right to claim constructive dismissal. The EAT said that it was possible for an employee to affirm the contract even after they had resigned in response to a breach.