Constructive Dismissal: Was a failure to return to work at the end of maternity leave an acceptance of the employer’s breach of contract?

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Constructive Dismissal: Was a failure to return to work at the end of maternity leave an acceptance of the employer’s breach of contract?

Published 1 December 2020

An employee who did not return to work after her maternity leave had accepted her employer’s repudiatory breach of contract and had been constructively dismissed.

THE FACTS

Mrs Ure was employed by Chemcem Scotland Limited.  She is the daughter of the majority shareholder of the company, Mr Beaton.  While she was on maternity leave, she was in touch with her father about several matters affecting her employment.  The dialogue was difficult: as the tribunal later held, Mr Beaton at times misled Mrs Ure or failed to communicate information which, as an employee, she was entitled to have.  These difficulties arose from the fact that Mr Beaton had left his wife, Mrs Ure’s mother, and was in a relationship with another employee.  This had resulted in a fraught relationship between Mr Beaton and Mrs Ure.

At the end of her maternity leave, Mrs Ure did not return to work.  She claimed in the employment tribunal that she had been constructively dismissed.  The tribunal upheld her claim.

Chemcem appealed to the EAT.  It argued that Mrs Ure had refused to return to work because Chemcem had stopped paying statutory maternity pay. It argued that her statutory maternity pay had come to an end at the right time, and it had therefore acted lawfully. The EAT dismissed this ground of appeal: it held that the tribunal had not relied on the cessation of statutory maternity pay as being the reason why Mrs Ure had been constructively dismissed. 

Chemcem also argued that Mrs Ure’s non-appearance at work could not amount to a communication of acceptance of the repudiatory acts and that, without communication of acceptance, there could be no constructive dismissal.   

The EAT also dismissed this ground of appeal.  It commented that, in normal circumstances, a failure to appear at work might not carry the implication that an employee had accepted an employer’s breach of contract.  However, in the context of the findings of fact in this case, which had not been challenged by Chemcem, the EAT held that it “plainly could” carry this implication. These findings were that Mrs Ure had not returned to work because of how Mr Beaton had treated her. Mr Beaton knew that if she returned to work, his new partner would come under Mrs Ure’s management, and he did not want that to happen.  Additionally, the tribunal had found that no one had got in touch with Mrs Ure when she failed to return after her maternity leave.  

WHAT DOES THIS MEAN FOR EMPLOYERS?

The facts of this case were unusual.  Employers should not generally assume that an employee who has not returned to work after maternity leave (or any period of absence) has resigned.   There could be many reasons for not returning to work.  An employer’s best course of action will normally be to communicate with the employee (or, at least, attempt to do so) as soon as possible after the failure to return in order to discuss the situation.  

Chemcem Scotland Ltd v Mrs Kirsty Ure

Authors

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

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