In Cockram v Air Products PLC, Cockram's contract required him to give three months' notice to terminate employment. He was unhappy that a grievance he had lodged about comments made to him by his line manager had been rejected. Cockram regarded both the line manager's and Company's conduct as wholly unacceptable and was so serious that he had no alternative other than to leave. He gave 7 months' notice saying that he had no other work secured to enable him to leave immediately and he needed to work for a reasonable period of time. 

Upon leaving, Cockram lodged a constructive dismissal claim, but an employment tribunal struck out it out finding that he gave much longer notice than contractually required for his own financial reasons, and by giving long notice for his own ends rather than any “altruistic” (unselfish) reason he had affirmed the contract.

The EAT rejected Cockram's appeal. One of the elements in a constructive dismissal claim is that the employee must not delay too long in leaving, as a prolonged delay may be viewed as accepting the breach. The EAT rejected Cockram's argument that there was no limit on the length of notice that can be given and that post-resignation affirmation is excluded from constructive dismissal law. The question of affirmation of the contract is fact-sensitive. All the circumstances may be relevant, including the length of notice given and the reason why notice has been given. Therefore, the ET had been entitled to find that Cockram, by giving and working notice that greatly exceeded his contractual notice period, solely for his own financial reasons, had affirmed the contract.

The welcoming news for employers, as the EAT highlighted, is that if there was no limit on the period of notice that could be given, an employee could give many months' or even years' notice, in excess of their contractual notice period, but still retain the right to claim constructive unfair dismissal and that cannot be what Parliament intended. 

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