An employee has lost the chance to bring a constructive dismissal claim because he gave more than the contractually required notice.

A constructive dismissal claim can arise where the employer has committed such a serious in breach of the contact of employment that the employee is legally entitled to treat it as terminated. Traditionally this was done by walking out on the spot and making it clear that this was in response to the employer’s breach of contract. However, in our employment protection legislation it is possible to preserve the right to claim unfair dismissal even if resigning on notice.

The law is silent about how long this notice can be, but it is clear that in this latest decision the employee was pushing his luck by giving seven months, over double the contractual notice period of three months. The EAT has upheld the employment tribunal’s decision that this amounted to affirming the contract, extinguishing his entitlement to bring unfair dismissal proceedings.

The EAT was reluctant to lay down any rule of thumb about how long the notice period had to be before the right to bring unfair dismissal proceedings was lost. It said that a tribunal would need to look at all the circumstances to decide whether an employee had affirmed the contract, not just the length of the notice period. However it is a fair assumption that most employees who give no more than the contractual notice period are unlikely to be taken as affirming the contract. Conversely potential unfair dismissal claimants who give longer notice than their contract provides are unlikely to succeed.