Cockram v Air Products Plc – constructive dismissal, notice periods, and affirmation of contract

In this article, Employment Law Solicitor Chris Hadrill looks at the recent Employment Appeal Tribunal case of Cockram v Air Products plc, a claim which examined constructive unfair dismissal and when an employee could be deemed to have undertaken an action which affirmed their contract of employment (and therefore prevented them from making a claim for constructive unfair dismissal).

The facts

Mr Cockram worked for Air Products plc from August 1988 to 25 July 2012, most recently as Director of Business Information for the company. In May 2012 there was an altercation between the Claimant and his line manager and he submitted a grievance. The grievance was not upheld and the Claimant appealed against it on 28 June 2012, with a decision being sent to him on 9 July 2012. The Claimant was unhappy with the grievance appeal outcome and subsequently resigned from his employment, citing that there had been a fundamental breach of trust and confidence. Instead of resigning without notice, though, the Claimant gave seven months’ notice of the termination of his contract of employment (above the contractual three months) for the reason that he had “no other work secured to enable [him] to leave immediately and need to work for a reasonable period of time”.

The Claimant’s period of resignation came to an end on 28 February 2013 and he made a claim to the Employment Tribunal on 24 May 2013 claiming that he had been constructively unfairly dismissed, that he had been subjected to detrimental treatment because of his having made protected disclosures, and that he had been subjected to unlawful age discrimination.

The relevant law

Under s.95(1)(c) of the Employment Rights Act 1996, an employee is entitled to be treated as dismissed if he or she “terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct“

Further, an employee is entitled to terminate without notice by reason of the employer’s conduct if there has been a fundamental repudiatory breach of contract by the employer (if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract).

It is important to stress that s.95(1)(c) gives the employee the ability to resign with or without notice, but he or she must make their mind up as to whether they are going to treat the employer’s conduct as repudiatory soon after the occurrence of the alleged repudiatory act. Alternatively, if the employee chooses not to accept the breach of contract and resign then they will affirm the contract and the employee will lose the right to claim for constructive dismissal.

The Employment Tribunal decision

The Employment Tribunal judge decided that Mr Cockram had affirmed his contract of employment by giving longer notice than the contract prescribed and therefore struck out as having no reasonable prospects of success the Claimant’s claim for constructive unfair dismissal. The Claimant appealed.

The Employment Appeal Tribunal’s decision

The Employment Appeal Tribunal rejected the Claimant’s appeal, stating that although s.95(1)(c) operates so as to vary the common law position that the giving of notice would automatically affirm the contract, whether the contract could be affirmed by the giving of notice was a fact-sensitive issue and working a longer notice period than required added to and therefore affirmed the contract – the Claimant had, for his own financial reasons, given a notice period longer than that which was contractually required. The Employment Appeal Tribunal therefore upheld the decision to strike the Claimant’s claim for constructive dismissal out.

Our analysis

Chris Hadrill, partner in the employment team at Redmans, commented on the case: “This is solid reasoning from the Employment Appeal Tribunal, dealing with the relatively thorny issue of the law relating to constructive dismissal. Claimants who wish to bring a claim for constructive dismissal to the Employment Tribunal should be aware that actions or omissions which affirm their contract of employment (such as, in this case, the serving of a period of notice which was longer than that which was required contractually) could mean that they will be prevented from bringing such a claim.”