Chemcem Scotland Ltd v Ure: Unfair Dismissal?
This is a case looking at whether an employee’s failure to return to work after maternity leave was a constructive unfair dismissal following repudiatory acts.
In constructive dismissal claims, a contract is not automatically terminated by an employer’s repudiatory breach. For the contract to be terminated an employee must first accept the breach, i.e., Ms Ure must indicate that she is leaving and is doing so due to the breaches. The tribunal therefore considered whether her simply non-attendance amounted to her accepting the breach.
Ms Ure claimed that her Father, the majority shareholder at Chemcem and with whom she had difficult family circumstances, had demonstrated hostility towards her continued employment. She alleged that she had her pay varied without notice, the company switched her to a different payroll and failed to pay her SMP on time and failed to have her questions on her pay entitlement answered, or when answered, misled her. When her maternity leave expired, she simply did not return. She never communicated she would not be returning, and therefore never said she was accepting any breaches.
Despite not having accepted the breaches at the time, she was successful in her tribunal. Chemcem appealed because of her failing to communicate her acceptance of the breaches and therefore it could not be a termination of contract (constructive dismissal). However, they lost the appeal on the basis that her actions could plainly be seen that she had accepted the breaches by simply not returning to work. They also recognized that Chemcem had not challenged the basis of the employment tribunal’s decision which had identified that her non return to work was due to her father’s treatment of her. They also felt that at the time of her non return, the company failed to contact her to ask why not. Taking all of these facts into account the Employment Appeals Tribunal therefore concluded that there was no need for an express communication from Ms Ure at the time of her acceptance of the breaches.
Whilst this is perhaps an unusual situation, and the judgement was based on its own unique circumstances, it is not necessarily indicative of what makes a constructive dismissal. In another scenario, an employee not returning to work may not normally imply an acceptance of an employer’s repudiatory breach. However, we would recommend that in all cases of non-returns, whether after any period of family friendly leave, or other absence, that contact is made at the time to establish the reasons for the absence and ensure there is a written record of your communications.
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