Policy News Journal - 2014-15

(iii) the Claimant had not discharged or varied her contract of employment by not taking salary for the last 2 years. The Claimant's entitlement to a redundancy payment of £7,296 from the Insolvency Service would therefore stand.

Constructive Dismissal and Affirmation of Contract

28 May 2014

Can an employee be held to have affirmed the contract (and hence have lost any claim for constructive dismissal) if he or she gives longer than the contractual minimum notice period?

Yes, held the EAT in Cockram v Air Products Plc.

With thanks to Daniel Barnett’s employment law bulletin which summarises the case:

The Claimant resigned his employment in response to what he considered to be a fundamental breach by the Respondent of the implied term of trust and confidence, but he gave 7 months notice rather than the 3 months required by his contract. The EAT re-iterated that section 95(1)(c) of the Employment Rights Act 1996 varies the common law position by preventing the giving of notice when resigning from being automatically an affirmation of the contract. Nonetheless, it held that the concept of affirmation remained relevant to the statutory question of whether there had been a constructive dismissal (as defined by section 95(1)(c) ERA). This would always be a fact sensitive question, and there was no rule that post- resignation conduct (such as working a long notice period) was excluded from consideration. The Claimant had, for his own financial reasons, given a longer notice period than was contractually required, and had thereby affirmed the contract. His constructive unfair dismissal claim was therefore struck out.

Limited Liability Partnership Member is a 'worker'

29 May 2014

Can a member of a Limited Liability Partnership (LLP) be a 'worker' within the meaning of section 230(3) of the ERA 1996?

Yes, according to the Supreme Court in Clyde & Co v Bates van Winkelhof .

With thanks to Daniel Barnett’s employment law bulletin which summarises the case:

Baroness Hale, giving the leading judgment, held that a member of an LLP (in this case, a fixed-share equity partner of a firm of solicitors) has worker status and thus is entitled to protection against whistleblowing detriments. She stated that "one can effectively be one's own boss and still be a 'worker'", citing the example of a controlling shareholder in a company who is also the chief executive (para 39). She made the point that such a finding is "entirely consistent" with the policy of the whistleblowing laws, and it is "particularly applicable to businesses and professions operating within the tightly regulated fields of financial and legal services." (para 46)

An employment tribunal will now decide the case on its merits. For an excellent analysis of the implications of the decision, see this piece by CM Murray .

CIPP Policy News Journal

08/04/2015, Page 107 of 521

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