Springhouse Solicitors

When working beyond notice will defeat a constructive unfair dismissal claim

An employee who resigns and works beyond their contractual notice period for their own financial reasons will not succeed in a claim for constructive unfair dismissal say the Employment Appeals Tribunal, in Cockram v Air Products Plc, 21 May 2014.

The Claimant, who held a senior position as Director of Business information, resigned in response to his employer’s fundamental breach of contract and gave seven months’ notice instead of his contractual requirement to give three. In the previous and leading judgment of Buckland v Bournemouth University 2012, the Court of Appeal held differently. The Claimant, a professor and head of department, succeeded in his claim for constructive unfair dismissal when he resigned and gave five months’ notice. The professor gave notice to expire at the end of the academic year as he wished to fulfil his obligations towards his students.

The Employment Appeal Tribunal distinguished the two cases by stating that the professor had ‘altruistic’ reasons for working a long notice period.

The leading judgment of the then House of Lords, in West Excavating v Sharp 1978 confirms that the employer’s conduct must be sufficiently serious to entitle the employee to leave at one. In recognition of the enormous pressure faced by an employee in these circumstances, s.95(1)(c) of the Employment Rights Act 1996 entitles an employee to resign ‘with or without notice’ (emphasis added).

Both decisions provide clarity about the interpretation of ’with notice’ under s.95(1)(c) and emphasise that the facts of each case must be carefully considered.

The above is only one of a number of tests that need to be satisfied in order to bring a successful claim for constructive unfair dismissal.