What Warrants 'Communication' of an Acceptance of a Repudiatory Breach?
The Employment Appeal Tribunal (EAT) has concluded that an employee's failure to return to work after maternity leave did amount to acceptance of a repudiatory breach of her employment contract for the purpose of a constructive unfair dismissal claim.
Repudiatory Breach and Constructive Unfair Dismissal
Where an employee considers that there has been a serious breach of their employment contract by the employer, the employee may be entitled to resign in response to the breach and claim constructive dismissal. To succeed in this claim, the employee will need to be able to show that the employer's breach of contract was serious enough to justify the resignation and allow the employee to treat the contract as being at an end. This is known as a repudiatory breach of contract.
Where an employee resigns in response to a repudiatory breach by the employer, the employee is required to communicate their acceptance of the breach to the employer, letting them know that they consider the contract as having been brought to an end.
In the recent case of Chemcem Scotland Ltd v Ure, the EAT held that the employee's failure to return to work was sufficient to constitute valid communication of her acceptance of the employer's breach.
In this case, whilst Mrs Ure was on maternity leave, a series of acts/omissions took place relating to her pay which together constituted a serious repudiatory breach of her contract. These included (amongst other things) failure to pay her statutory maternity pay on time without explanation.
In light of the employer's conduct, Mrs Ure decided not to return to work at the end of her maternity leave. She did not tell her employer that she would not be returning, or her reasons for not coming back, and simply did not attend work on the date of her expected return. In response to Mrs Ure's non-attendance, the employer did not ask any questions or attempt to contact Mrs Ure to ascertain her whereabouts.
Mrs Ure claimed that she had been constructively dismissed and that her non-attendance was sufficient to communicate her resignation to her employer. In the circumstances, the Employment Tribunal agreed and found in Mrs Ure's favour. However, the employer challenged the decision, arguing, in particular, that failure to return to work was not enough to communicate acceptance of the alleged breach. Therefore, the employer said that Mrs Ure had not validly brought the contract to an end.
The EAT disagreed with the employer and dismissed the appeal. The EAT said that, whilst in normal circumstances, a failure to appear for work might not constitute implied acceptance of a repudiatory breach, in the context of this case it could. Therefore, Mrs Ure did not need to communicate with her employer.
Clear Communication
This decision was highly fact specific and is not necessarily a precedent for future cases. As a result, employees would generally be advised to communicate acceptance of any repudiatory breach of contract by the employer. Where employees don't attend work, employers are advised to make contract with the employee to understand why they have failed to attend.