Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

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:

[quote cite=”Employment Rights Act 1996, s.95(1)(c)” url=”http://www.legislation.gov.uk/ukpga/1996/18/section/95″]”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”  [/quote]

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

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.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

Your first name (required)

Your last name (required)

Your email (required)

Your telephone number (required)

Brief details of your enquiry

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.77 Average

205 Reviews

Gary P

All good advice, prompt and efficient

Posted 3 weeks ago

Anonymous

Excellent advice and customer service.

Posted 1 month ago

Aneet G

I would definitely recommend Redmans. Very impressed with service provided. They were extremely proactive in handling my case which made things easier for me. Provided sound advice and resolution. Special credit for this goes to Chris who dealt with my case with great determination and consideration.

Posted 2 months ago

Fern M

Very efficient and friendly

Posted 2 months ago

Neville S

A professional and friendly service, which I would highly recommend.

Posted 2 months ago

Daniel T

Extremely helpful and made a bad situation much more manageable. Where other solicitors seemed disinterested in my situation Redmans immediately made me feel like it was a team effort to achieve a more favourable outcome

Posted 2 months ago

Paul T

Excellent, quick and informative. Chris was a real star and gave me confidence during the uncertainty if a redundancy settlement.

Posted 2 months ago

Marina E

Felt in very capable hands was listened to and given excellent advice. Would not hesitate to recomend and use again if needed.

Posted 2 months ago

Rosa B

Fabulous service all round.

Posted 2 months ago

Anonymous

Redmans were quick to respond to my enquiry and dealt with my case professionally and personably. I received sound advice and was put at ease by Chris Hadrill, Partner.

Posted 2 months ago

Alkhas K

Excellent service.

Posted 2 months ago

Mathias G

Contacted them regarding my end of employment agreement. Chris Hadrill dealt with it and was done and handed back to employer same day more than happy with there service.

Posted 3 months ago

Mark W

Most professional from start to finish offering very a personal service. Most impressive and quick when dealing with the matters in hand.

Posted 4 months ago

Anonymous

Posted 4 months ago

submit

I am very glad I came across Redmans Solicitors. Fantastic service!

Posted 4 months ago

Anonymous

Fantastic communication, always happy to answer queries, highly recommended.

Posted 4 months ago

Wavenie B

They were very straight to the point, friendly and understanding people. I felt they had my best interest. They were easy to get hold of, replies were almost instant. 5/5 for customer service

Posted 4 months ago

Christina P

Caroline was fantastic to work with - extremely knowledgeable, supportive, thorough and honest. I definitely recommend Redmans!

Posted 4 months ago

Anonymous

Very well done and fast support. Professional and reliable. Highly recommended!

Posted 4 months ago

Helene L

They were very knowledgable in the respected area in terms of change in law/regulations that is crucial for the clients who are seeking for legal arvice.

Posted 4 months ago

Sara R

Very helpful and wonderful advice

Posted 4 months ago