Giving Too Much Notice?

Giving Too Much Notice Meant Employee lost their Constructive Dismissal Claim

A constructive dismissal occurs where the employer does not dismiss the employee, but the employee resigns and can show that they were entitled to do so by virtue of the employer’s conduct.

Employees can resign either with or without notice, what matters is that they have the right to resign without notice because of the employer’s conduct towards them.

Employees need to be able to show three things to win a constructive dismissal claim:

  1. A breach of contract by the employer that is sufficiently serious to justify the employee resigning.
  2. The employee must resign in response to that breach of contract.
  3. The employee must not delay too long in accepting the breach.

Constructive dismissal claims have always been difficult cases for employees to win. The employee has to prove that the employer was in fundamental breach of contract. It is not enough just to show that they were not treated fairly. Even if they can do that the employee could still lose their claim because they delayed leaving employment. Even though an employee is permitted to give notice on resignation, the fact that they feel able to work their notice period may lead a tribunal to find that the claimant had in fact delayed too long.

In the recent case of Cockram v Air Products plc a senior employee with a three month notice period resigned after a grievance he raised was not upheld. He claimed that this amounted to a breach of his contract entitling him to claim constructive dismissal. Because he did not have any other work lined up he gave 7 months notice to his employer. He lost his case because of that. The Employment Tribunal and EAT found that to give 7 months notice was to delay too long in accepting the breach and the case was thrown out.

Paul Whitfield can be contacted on 0161 2831276 or

Employment Law Solicitors – Head Office based in Manchester with offices located throughout the United Kingdom.