Employee can affirm a breach of contract by giving more notice than required

Cockram v Air Products PLC [EAT] | 2014

Mr C started work with Air Products in 1988. By the time he resigned he held a senior post as Director of Business Information.  His contract required him to give three months’ notice.

In May 2012 Mr C raised a grievance against his line manager. Mr C’s grievance and appeal were rejected. The appeal’s decision was sent to Mr C on 9 July 2012.

On 25 July 2012 Mr C resigned. His letter of resignation said he regarded his line manager’s ‘conduct … and the subsequent conduct of the company as being wholly unacceptable. This is so serious I do not believe I can carry on with the company and I am accordingly giving my notice which will expire on 28 February 2013.’

The dates are correct! Mr C, instead of giving three months’ notice as required under his contract of employment, gave seven months’ notice. It is unclear why but was for Mr C’s ‘own financial ends’.

Mr C later claimed constructive unfair dismissal. As a preliminary issue Air Products argued that any breach of contract that entitled Mr C to resign had been accepted (or affirmed) by Mr C giving more notice than he was required to; hence Mr C’s claim should not be allowed to proceed. The employment tribunal agreed and struck out Mr C’s claim.

The EAT:

• upheld the employment tribunal’s decision to strike out Mr C’s claim as Mr C, by giving longer notice than he was required to, had affirmed the contract.
• rejected Mr C’s arguments that his actions after giving notice were immaterial to whether or not he affirmed the breach.
• accepted that giving notice itself did not affirm the contract but continued:

‘Where [an employee] gives notice in excess of the notice required by his contract, he is offering additional performance of the contract to that which is required by it. That additional performance may be consistent only with affirmation of the contract.’

The facts of this case are likely to be rare in practice. Employees tend to resign with no notice or shorter notice. This case makes it clear that employees who give notice in excess of their contractual obligations may well be considered to have accepted any breach of contract by their employer. But the EAT stressed that whether an employee has accepted a breach is fact sensitive. It will not always follow that an employee who gives longer notice will automatically be found to have accepted any breach.

This case, however, has a wider significance. Take an employee who gives notice but does more than their contract requires of them during the notice period. An employee who arrives early or stays late, for example, may be offering ‘additional performance’ and it may be that employers can argue that this additional performance is acceptance by the employee of any breach of contract.