Did an employee's failure to return to work after her maternity leave amount to acceptance of a repudiatory breach for the purposes of constructive unfair dismissal?
Yes, held the EAT in Chemcem Scotland Ltd v Ure.
The Claimant went on maternity leave, during which the tribunal held that the Respondent committed repudiatory breaches which the Claimant was entitled to accept and claim constructive unfair dismissal. The breaches were committed by the Claimant's father (also the Respondent's majority shareholder), who demonstrated hostility to her continued employment in the context of difficult familial circumstances.
The EAT upheld the tribunal's decision that the Claimant accepted the breaches by failing to return to work post-maternity leave. Whilst a failure to appear might not normally amount to sufficient communication of acceptance, this was a fact-sensitive matter "it was for the tribunal as finder of fact to judge whether her non-appearance was eloquent of an acceptance of the repudiatory breaches".
The circumstances of the Claimant's failure to return were eloquent of the true position and there was no need for express communication of acceptance.
Thanks to Joshua Cainer of Outer Temple Chambers for preparing this case summary.