I read an interesting law report this morning on a new constructive unfair dismissal case. (Cockram v Air Products plc)

Mr Cockram was in a senior position earning a large salary. He raised a grievance and was unhappy with the outcome. His contract required him to give three months’ notice to terminate his employment. Mr Cockram resigned from his employment on 25 July 2012. He claimed that the grievance outcome was a fundamental breach of his contract entitling him to resign. The surprising fact being that he gave seven months’ notice on the basis that “he needed to work for a reasonable period”. He subsequently brought a claim for constructive unfair dismissal.

The claim was struck out at a pre-hearing review on the grounds of having no reasonable prospect of success. Mr Cockram appealed.

The EAT dismissed his appeal on the basis of affirmation. It was decided that it was immaterial when affirmation of the contract took place i.e. pre or post resignation. The factors to be considered were the length of notice given and the reason why additional performance of the contract would be given. It is essentially a fact-sensitive analysis. The Judge confirmed that offering to work an additional four months’ notice, solely for his own financial gain, had the effect of affirming the contract.

In my opinion any reasonable employer would have acted the same way. Although you are paying out an additional 4 months’ salary, the employee is still working for your benefit, you have time to recruit and handover effectively and the affirmation defence moves from intention to action.

I wonder whether any settlement discussions were held but failed during the seven months’ notice!