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Constructive dismissal and notice periods

27th May 2014
Constructive dismissals can arise, in practice, a number of ways. However, the law has long been clear that for an individual to treat him or herself as being constructively dismissed by his or her employer that individual must show that their employer has behaved in some way as to justify them leaving their job. This must involve a breach of contract by the employer. Sometimes the breach of contract will be obvious, such as reducing the pay or hours without agreement, or demoting the employee, or changing the employee's duties without their agreement. Sometimes the breach of contract will arise from a collection of incidents which, added together, justify the employee claiming constructive dismissal. The common thread is that the employee has to make the difficult decision to leave their employment in order to be able to claim constructive dismissal. The courts have acknowledged that this decision places enormous pressure on an individual. The problem for the individual is that if he or she decides not to leave they can lose the ability the right to bring a claim of constructive dismissal over the incident(s) in question. By staying and continuing to work, or simply waiting too long to complain, the employee can be deprived of the right to rely on the problem(s) in a claim of constructive dismissal. The common law principle here is known as "affirmation". In recognition of the problems faced by individuals in this situation the Court of Appeal noted, in a judgment in 2011, that "For that reason the law looks carefully at the facts before deciding whether there has really been an affirmation"- (the words of Lord Justice Jacob in the case of Bournemouth University Corporation v Buckland). 

One of the ways in which the law helps to reduce the immediate financial risk to the individual that is considering bringing a claim of constructive dismissal is the fact that such a claim can be brought whether the employee leaves "with or without notice." This means that the individual can either leave their employment immediately, or give notice to their employer and still be able to bring a claim of constructive dismissal after that notice has expired. However, this begs the question whether an employee losses his or her right to bring a claim of constructive dismissal if they give notice longer than is required under their contract of employment. A recent decision of the Employment Appeals Tribunal has considered this question.
The case of Cockram v Air Products Plc concerned an employee that had a three months notice period. Mr Cockram complained to his employer about comments that  had been made in a telephone conversation with his line manager. He raised a grievance about the conversation. The grievance was rejected, as was his subsequent appeal. He subsequently submitted a resignation letter in which he stated that the company had acted in fundamental breach of its own values and code of conduct, and this had resulted in the destruction of trust and confidence. He went on to state that " I have no other work secured to enable me to leave immediately and I need to work for a reasonable period of time and it is for this reason only that I am giving notice." He gave 7 months notice, rather than the 3 months notice required under his contract of employment.

Mr Cockram brought a claim of constructive unfair dismissal, among others, in the Employment Tribunal. His former employer argued that having given 7 months notice instead of the three months required under his contract, Mr Cockram had "affirmed" the breach and was unable to claim that he had been constructively dismissed. The Employment Tribunal, in a preliminary hearing, dismissed the claim of constructive dismissal, noting that he had given much longer notice than required by his contract, that he had done that for his own financial reasons (as opposed to for the benefit of any other person or other reason), and therefore he had affirmed the contract, so could not claim constructive dismissal. This issue was then the subject of an appeal in the Employment Appeals Tribunal.

In the Employment Appeals Tribunal (the EAT) it was argued on behalf of Mr Cockram that the phrase in the legislation "with or without notice" does not limit the period of the notice that an individual can give. The EAT rejected that argument, concluding that there must be some limit on the length of notice that can be given, so that there will come a point at which the individual can be said to have "affirmed" the contract (and therefore be barred from claiming constructive dismissal). The EAT noted that the length of time will depend on the facts of each case. In this case the EAT observed that in giving notice in excess of the contractual notice period the individual was effectively "offering additional performance of the contract to that which is required by it. That additional performance may be consistent only with affirmation of the contract." The EAT rejected the argument that the phrase "with or without notice" meant that there was no limit on the amount of notice that an individual could give before losing the right to claim constructive dismissal.

This case emphasises the difficult choices faced by a person that believes that they have been constructively dismissed by their employer. In particular the financial risks to such an individual are illustrated by this case. Clearly in this case the individual gave a lot longer notice than was required (4 extra months of notice). In that time he earned a significant sum in salary from his employer. But the problem is greater for an individual that has a short period of notice under their contract of employment. This case  emphasises that such individuals have to decide carefully (and quickly) on whether or not to give notice before claiming constructive dismissal when there will be only a very short period of notice before they are without an earned income. This is challenging when job opportunities are limited and when the individual has significant personal financial responsibilities. However, for the sake of certainty it is clearly sensible that the EAT rejected the argument that there is no upper limit on the notice periiod that an employee can give and still then claim constructive dismissal. The case also highlights the need for individuals to give very careful consideration to their notice requirements, as well as their financial circumstances and needs, before leaving their employment with a view to claiming constructive unfair dismissal.

If you need and advice on the matters raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.                 
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