Excessive notice can be fatal to constructive unfair dismissal claim

The Employment Tribunal had struck out the Claim on the basis that, by resigning with more than his minimum notice period of 3 months, the Claimant had affirmed the contract. The reason the Claimant gave additional notice was for his own financial reasons and he resigned promptly in the face of treatment by his line manager and the way in which his grievance regarding this was handled.

The Claimant argued at appeal that there was no limit on the length of notice which an employee could give for the purposes of the ERA section 95(1)(c) and that post resignation conduct could not be treated as affirmation of the contract. However, the appeal was dismissed on the basis that, if the employee’s conduct  post resignation is inconsistent with him trying to claim he has not affirmed the contract, this conduct must be able to be considered by a Tribunal when make findings of fact. The Claimant had offered notice in excess of the contractual requirement and was thus offering additional performance to what was required by his contract. The EAT considered that this offer of additional performance was consistent with affirming the contract and as such the Claimant’s appeal was dismissed.

The moral of this story is clearly that Claimants run a considerable risk of not being able to claim constructive dismissal if they proffer notice in the face of the repudiatory breach which is in excess of their contractual notice period.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.