Guidance on Affirmation of Employment Contracts

In an important decision which helps to define the concept of ‘affirmation’ in the employment context, a worker who gave more notice than he was contractually obliged to do following his resignation has had his constructive unfair dismissal claim ruled out by the Employment Appeal Tribunal (EAT).

The senior employee had worked for the same company for more than 20 years but resigned following a bitter disagreement with his line manager. His contract required him to give three months’ notice; however, he gave seven, saying that he could not leave immediately for financial reasons and needed time to find another job.

His claim was struck out by an Employment Tribunal (ET) on grounds that, by giving more notice than required, he had affirmed his employment contract. The ET found that his agreement to stay in his post for longer than he was obliged to do was ‘for his own ends rather than for any altruistic reason’.

The EAT noted that Section 95(1)(c) of the Employment Rights Act 1996 had the effect of varying ordinary common law principles for the purposes of a statutory claim for unfair dismissal by giving employees the right to resign on notice without being treated as having affirmed their contracts.

However, in dismissing the employee’s appeal, the EAT found that resolution of the issue was a matter of fact and degree. Although mere delay was unlikely to amount to affirmation, the ET was entitled to conclude on the particular facts of the case that the employee had affirmed his contract and thus lost his right to pursue an unfair dismissal claim.