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Waiver of right to claim constructive dismissal

Posted by TonyBrownEmploymentSolicitor on May 23, 2014

The Claimant in the next case lost his claim for constructive dismissal because he gave his employer longer notice than he was required to give under his contract.

The facts were that the Claimant raised a grievance about comments made to him by his line manager. However, he was unhappy with the grievance decision and resigned by giving the employer 7 months’ notice rather than the 3 months required by his contract because: 

“I have no other work secured to enable me to leave immediately and I need to work for a reasonable period of time and it is for this reason only that I am giving notice.” 

When his employment came to an end, the Claimant brought a tribunal claim for constructive unfair dismissal. His claim was, however, struck out on the basis that he had waived the alleged breach of the implied term of trust and confidence by giving a significantly longer notice period than that required by his contract. 

Under the common law, an employee wishing to resign because of his employer’s breach of contract and claim constructive dismissal must leave immediately because giving any notice would amount to affirmation of the contract forfeiting the employee’s right to claim constructive dismissal. Section 95(1)(c) of the Employment Rights Act amounts to a limited variation of the common law position by providing that the fact of giving notice does not by itself constitute affirmation of the contract. 

The Claimant had, for his own financial reasons, given a longer notice period than was contractually required, and had thereby affirmed the contract forfeiting his right to claim constructive unfair dismissal. 


An employee faced with an employer’s breach of contract is in a difficult position. If they just leave without another job to go to they may have no income. But if they stay there is a risk that they will be taken to have affirmed the contract thereby losing any right to claim constructive dismissal. Ideally a wronged employee who stays on to consider their position would say so expressly. But even that would be difficult and it will happen very often. For that reason the law looks carefully at the facts before deciding whether there has really been an affirmation of the contract. 

If you would like advice about how the issues in this note apply to your situation, please contact me.

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