In the case of Chemcem Scotland Limited v Ure, the Employment Appeal Tribunal (‘EAT’) held that an employee’s failure to return to work following maternity leave was sufficient to communicate her acceptance of her employer’s repudiatory breach of contract for the purpose of claiming constructive dismissal.
U worked for BRE Limited which was owned by her father, B. U went on maternity leave on 26 September 2016. During her maternity leave, U was in touch with B about a variety of matters affecting her employment. Due to family difficulties, their relationship was fraught. At times B misled U or failed to communicate information with her which she was entitled to. At the end of her maternity leave she did not return to work. She claimed that she had been constructively dismissed, relying on B’s treatment of her during her maternity leave.
An employment tribunal found that U’s employment terminated on 25 September 2017, the day upon which she was due to return from maternity leave. It held that the circumstances indicated that B was hostile to U’s continued employment over a period of time and that U was entitled to accept the repudiation and treat herself as dismissed. CS Limited (Ure’s employer at the time of the termination of her employment as a result of a TUPE transfer) appealed against the decision arguing that she had failed to communicate her acceptance of its repudiatory acts as she had not expressly resigned.
The EAT dismissed the appeal. It held that whilst in ordinary circumstances a failure to appear for work might not constitute implied acceptance of a breach, in the context of this case it plainly could.
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