EAT Unfair Dismissal – constructive dismissal
1. This is an appeal against the judgment of Employment Judge Baron sitting at London South promulgated on September 2013. By that judgement, the Employment Judge struck out the Claimant’s claim for unfair dismissal based on an alleged constructive dismissal, as having no reasonable prospect of success on the basis that the Claimant had affirmed the contract by giving seven months notice of termination following the respondent’s alleged breach, in circumstances where he was contractually obliged to give only three months notice and the reason for giving seven months notice was ‘for his own ends rather than any altruistic reason’.
2. Against that conclusion, the Claimant appeals raising a short question of law in relation to section 95 (1)(c) of the Employment Rights Act 1996; namely whether in circumstances where an employee resigns giving notice that exceeds the contractual minimum period of notice, the common law concept of affirmation has any applicability in the context of post resignation employment and if so how it is to be applied.
3. The parties are referred to as the Claimant and the Respondent as they were before the Employment Tribunal. The Respondent was represented by Mr Andrew Blake of counsel both before the Employment Tribunal and on this appeal; the Claimant by Mr Daniel Tatton Brown, of counsel. Both counsel have presented their cases clearly and concisely, and I am grateful to them both.
Simler DBE J
[2014] UKEAT 0038 – 14 – 2105
Bailii
England and Wales
Employment
Updated: 04 December 2021; Ref: scu.526087