Under the Employment Rights Act 1996 (ERA), employees bringing a constructive unfair dismissal claim can give notice without being deemed to have affirmed their contract. In Cockram v Air Products plc, the Employment Appeal Tribunal (EAT) held that there is no basis under the Act for inferring that tribunals could not consider post-resignation affirmation.
Mr Cockram, who had worked for Air Products since 1988, lodged a grievance at the end of May 2012 following comments allegedly made by his line manager. He was unhappy with the grievance decision and appealed it. The appeal was heard on 6 July and the decision sent to him on 9 July.
He resigned by letter dated 25 July, citing a breach of trust and confidence. He gave seven months’ notice (although his contract only required him to give three months) because, as he explained in the letter, he did not have another job to go to. The notice period came to an end on 28 February 2013 and he brought a tribunal claim on 24 May for constructive unfair dismissal. He also claimed that he had been subjected to detrimental treatment for blowing the whistle and unlawful age discrimination.
At a preliminary hearing the tribunal judge struck out his claim for unfair dismissal on the grounds that Mr Cockram gave much longer notice than he was contractually required to do; that it was for his own financial reasons rather than any altruistic reason; and that by doing so, he had affirmed the contract.
Section 95(1) (c) ERA gives employees the right to be treated as dismissed if they terminate their contract (with or without notice) in circumstances in which they were entitled to terminate it without notice because of their employer’s conduct.
Under common law principles, an employee who gives notice when terminating their contract is deemed to have affirmed it. Although section 95(1)(c) varies that rule by giving employees the right to resign on notice without affirming it, the question for the EAT was how far that variation could be extended.
It decided that the answer as to whether an employee had affirmed their contract was fact sensitive and context dependent. That being so, section 95(1)(c) did not create an inflexible rule whereby tribunals could not consider post-resignation affirmation. For instance, if an employee resigned on notice but despite doing so their conduct was inconsistent with saying they had not affirmed the contract, tribunals must be able to consider that conduct when deciding whether the dismissal was unfair or not. Equally, if an employee gave notice in excess of the notice required by their contract, it would be a question of fact and degree whether in those circumstances their conduct could be regarded as affirmation of the contract.
In this case, the judge was entitled to conclude that Mr Cockram had affirmed his contract, having given seven months’ notice (when his contract required only three) solely for his own financial reasons. The judge was also entitled to conclude that he had further affirmed his contract by providing services and receiving substantial remuneration for seven months after handing in his notice.