This case revolved around the issue of 'affirmation' of a breach of contract. The employee in question resigned but gave seven months' notice instead of the required three. Had he, by giving more than twice the required notice, affirmed the variation to his contract by continuing to work? If so, his claim for constructive dismissal would fail because there would, in effect, no longer be a breach of contract to resign over.

Dismissal is defined in GB under the Employment Rights Act 1996 (The Employment Rights (Northern Ireland) Order 1996 in NI) and s.95(1)(c) of the ERA (A. 127(1)(c) of the ERO in NI) states the definition for 'constructive dismissal":

"the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct." The EAT concluded that it was "...satisfied that the issue of affirmation (whether pre or post resignation) is a concept capable of being considered under s. 95(1)(c) ERA."

The EAT accepted that employees could give notice when claiming constructive dismissal - the statute specifically allows for such a case - and that there is nothing in the statute itself which limits the amount of notice that might be given. However, there must be a limit:

"Nor am I persuaded that the legislative purpose of avoiding unfairness to employees reflected by the addition of the words “with notice” in s.95(1)(c) entails that post-resignation affirmation should be excluded as a concept, or that there should be no limit at all on the period of notice that an employee can give in these circumstances. Such an approach would lead to the position that an employee could give many years’ notice irrespective of the contractual notice provision, while retaining the right to claim constructive unfair dismissal. This cannot have been intended."

Practical Lessons from This Decision

Constructive dismissal cases are always fact-specific. In this one the EAT concluded that the tribunal was not wrong to conclude that seven months' notice was too long and that the employee had thereby accepted any breach of contract by continuing to work. http://bit.ly/1pA8GIT