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The giving of notice of greater length than is required by the
contract is inconsistent with a subsequent claim for constructive dismissal. By
giving longer notice than is required, the employee is treated as ‘affirming’
the contract despite any fundamental breach by the employer.
After C’s grievance and
appeal were rejected, he resigned giving seven months’ notice (though required
only to give three), saying that was for financial reasons. He complained of
constructive dismissal. His claim was struck out by the tribunal as having no
reasonable prospect of success. By continuing to work for considerably longer
than was required by the notice provisions of his contract, he had affirmed the
contract and so ceased to be entitled to resign without notice (a requirement
for constructive dismissals). The EAT upheld the tribunal’s decision.