In the recent case of Cockrem v Air Products Plc. [2014] UKEAT 0038/14/2105 the employment appeal tribunal upheld the decision of the employment judge to strike out a claim by Mr Cockrem that he had been constructively dismissed when he pursued that claim after having given seven months’ notice to resign in circumstances where his contract only required him to give three months.
Background
The claimant was employed by the respondent in a senior position as director of business information earning a substantial salary. His employment commenced in August 1988. His contract required him to give three months to terminate his employment.
The claimant was aggrieved about the way he had been treated. The company followed the grievance procedure. The claimant was unhappy with grievance decision and appealed it and the appeal decision was the sent to the claimant on 9th July 2012. The claimant argued that the employers conduct was
“wholly unacceptable. This is so serious I do not believe I can carry on with the company and I am accordingly giving my notice which will expire on 28th February 2013…
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 for this reason only that I am given notice”.
It is a prerequisite of a claim for unfair dismissal that a claimant can show that he has been dismissed. Section 95(1) of the Employment Rights Act 2006 provides that an employee can be treated as having been dismissed if
“(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he entitled to terminate it without notice by reason of the employer’s conduct.”
It is therefore clear that the mere fact that he gave notice does not prevent the claimant from arguing that he has been unfairly dismissed (which might otherwise be the case if it were regarded as an affirmation of the contract.)
The court concluded that despite the wording of this subsection the court was entitled to look at the claimant’s post resignation conduct and consider whether this amounted to an affirmation of the contract. On the facts of the case the tribunal decided that the employment judge had been entitled to conclude that the claimant had affirmed the contract by giving seven months’ notice when only three months’ notice was required and that he had done so “solely for his own financial reasons” rather than for any altruistic reason.