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Failure to return to work amounted to resignation in constructive dismissal claim

Makbool Javaid, Partner - Simons Muirhead & Burton

Can an employee’s failure to return to work after maternity leave be regarded as an acceptance of a employer’s repudiatory breach for the purposes of constructive unfair dismissal where she has not actually told the employer that she considers this to be the case?. Yes, said the EAT in Chemcem Scotland Ltd v  Ure. The ET had held that although U had stated in evidence that she did not return to work after her maternity leave because her statutory maternity pay had been discontinued in circumstances where the employer had been entitled to stop her payments, there were a variety of other factors that justified her decision not to return to work and because those factors were repudiatory breaches of contract in character, U was entitled to refuse to return to work and treat the employer’s conduct as constructive dismissal. The ET further held that her failure to return to work constituted a communication of her decision to end her employment, even though nothing was said to the employer. The EAT held that the ET was correct to treat the various repudiatory acts as a sufficient ground for U’s decision to rescind the contract and claim constructive dismissal and while ordinarily it was necessary to communicate a decision not to return to work, the circumstances of this case meant the employer could not have been in any doubt that the breaches were the cause of her decision not to come back.

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