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23rd November 2020

Failure to return to work was communication of acceptance of breach

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In the case of Chemcem Scotland Ltd v Ure the Employment Appeal Tribunal (EAT) held that an employee’s failure to return to work after her maternity leave amounted to communication of her acceptance of her employer’s repudiatory breach for the purposes of an unfair dismissal claim.

The Employment Tribunal (ET) found that while the employee was on maternity leave, her employee committed breaches of contract which were sufficiently serious to entitle her to resign and claim constructive unfair dismissal. The EAT confirmed the ET’s decision that the employee had accepted the breaches by failing to return to work.  While in normal circumstances non-appearance might not be an implied communication of acceptance, in the context of this case it clearly was.  When the employee did not appear on the date she was due to return no one got in touch to ask why she had not returned, and she did not need to communicate with the employer.

The case is a reminder that even where an employer’s breach is sufficient to entitle an employee to resign, the contract is not terminated until the breach is accepted by the employee. However, this case demonstrates that the employee does not necessarily have to communicate their acceptance expressly, as long as the fact that they have accepted the breach is unequivocal and unambiguous.

For more information please contact a member of the Employment Law Team.