Cockram v Air Products plc

Section 95(1)(c) of the Employment Rights Act 1996 permits an employee alleging constructive dismissal to resign with notice without automatically affirming the contract. It does not exclude affirmation altogether. The employee must still show circumstances entitling termination without notice because of the employer’s conduct. Affirmation may arise before or after resignation, through prolonged delay, an equivocal election, or conduct consistent only with the continued existence of the contract. Giving notice beyond the contractual minimum may constitute affirmation, but there is no rigid rule. The issue is fact-sensitive and depends on matters including the length of notice and the reasons for giving it. An employee who gives excessive notice for personal financial reasons and continues working may therefore lose the right to claim constructive unfair dismissal.

The claimant, a senior employee, alleged that conduct by his employer amounted to a fundamental breach of contract and resigned on 25 July 2012. His contract required three months’ notice, but he gave seven months’ notice, explaining in his resignation letter that he needed time to secure alternative work. He remained employed and worked until 28 February 2013.

The Employment Tribunal found that the extended notice was given for the claimant’s own financial reasons and that he had affirmed the contract. It struck out the constructive unfair dismissal claim as having no reasonable prospect of success. The appeal concerned the construction of section 95(1)(c) of the Employment Rights Act 1996: whether affirmation remained relevant after resignation and whether giving notice longer than the contractual minimum could amount to affirmation.

1. Appeal dismissed. The Employment Tribunal had made no error of law in striking out the constructive unfair dismissal claim.

2. Section 95(1)(c) of the Employment Rights Act 1996 must be read as a whole. The statutory reference to termination with or without notice creates a limited variation of the common law rule. Giving notice does not, by itself, affirm the contract.

3. Affirmation nevertheless remains relevant. The employee must resign in circumstances in which he is entitled to terminate without notice by reason of the employer’s conduct. The election to accept the breach must be clear and unequivocal. Affirmation may be express or implied, including through prolonged delay, an equivocal election, calling for further performance, or other conduct consistent only with the continued existence of the contract.

4. There is no principled basis for excluding post-resignation affirmation. Although such cases will be rare, section 95(1)(c) does not impose a rigid limit on the length of notice or create an inflexible statutory code. Whether conduct amounts to affirmation is a question of fact and degree, assessed in context.

5. Giving notice exceeding the contractual requirement involves offering additional performance. That conduct may be consistent only with affirmation. Relevant circumstances include the length of notice and the reasons for giving it. The approach was consistent with the common-law principles discussed in Western Excavating v Sharp [1978] QB 761, and with the fact-sensitive approach described in Bournemouth University Corporation v Buckland [2011] QB 323.

6. On the facts, the Employment Tribunal was entitled to find that the claimant gave seven months’ notice, rather than the contractual three months, solely for financial reasons. By continuing to provide services and receive substantial remuneration for that period, he affirmed the contract.

• Employment Appeal Tribunal: Appeal against the Employment Tribunal’s September 2013 decision, which struck out the constructive unfair dismissal claim. Appeal dismissed.
• Employment Tribunal: The tribunal held that the claimant had affirmed the contract by giving seven months’ notice and continuing in employment. The decision’s citation was not stated in the judgment.