Constructive Unfair Dismissal can be claimed by employees with over two years’ service where they resign in response to an alleged fundamental breach of contract by the employer.
A common question in law however, is whether, in order to bring the contract to an end, one party has to communicate to the other the acceptance of what it deems to be the other party’s fundamental breach(es)?
If such communication is not present, then as a matter of law, it can be argued that there is no termination of contract and therefore an employee’s claim in such circumstances could fail.
The Employment Appeal Tribunal (EAT) has recently considered this matter in Chemcem Scotland Limited v URE.
The facts are complicated involving a family business, but essentially the Claimant was on maternity leave and argued that the Respondent employer committed various repudiatory breaches throughout her maternity leave and had shown an unwelcome/hostile view about her employment during her maternity leave.
Rather than expressing to the employer her acceptance of what she deemed to be those fundamental breaches of the contract, the employee simply failed to return to work following her maternity leave.
The original Tribunal found that her ‘no show’ and failure to return was sufficient to communicate her acceptance of the employer’s breach and that she could claim constructive unfair dismissal. The company appealed, arguing that as the Claimant had failed to communicate her acceptance of the repudiation by the employer, then as a matter of law, it could not be a termination of contract so the claim must fail.
The EAT dismissed the employer’s appeal and agreed with the employee. They found effectively that it was for the Tribunal, on the facts of any individual case, to make an assessment whether such a failure to return to work constituted an implied acceptance of a repudiatory breach. It commented that in “normal circumstances” a failure to return to work might not constitute such acceptance of the breach of contract, but on the facts here, the Tribunal was entitled to find that her conduct in not returning was such acceptance.
The case should serve as a note to employers in similar circumstances. If an employee simply disappears from work, this could still constitute an acceptance of an alleged breach of contract by the employer. The employer might not be in receipt of a formal written or oral notification that such a position was taken by the employee.
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