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Did not returning from maternity leave amount to a resignation?

Gateley Legal

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What was the issue in the Chemcem Scotland Ltd v Ure case?

In order for an employee to bring a claim of constructive dismissal, they have to resign from their employment in response to a fundamental breach of contract. If the employee does not do so it may be argued they have waived the breach and affirmed the contract. The issue in Chemcem Scotland Ltd v Ure was whether a failure to return to work following maternity leave was sufficient to communicate the employee’s acceptance of the breach for the purpose of claiming constructive dismissal.

What were the facts of the case?

Mrs Ure had worked in her father’s business. Her relationship between them had become strained when she discovered he was divorcing her mother and had begun a new relationship with another member of staff.  During her maternity leave, she was not provided with full information about the changes to her wages and the end of her entitlement to statutory maternity pay. She did not return to work and later claimed constructive dismissal. The employer argued there had been no breach and no resignation.

Was there a breach of contract?

Whilst the employer had been entitled to stop her maternity payments failing to respond to her requests for information and misleading her about her pay entitlements did amount to repudiatory breaches of contract. In those circumstances, Mrs Ure had been entitled to refuse to return to work and treat the employer’s conduct as constructive dismissal. The fact she had not returned to work constituted a communication of her decision to end her employment, even though nothing was said to the employer. 

Key takeaway point 

It should be remembered that in normal circumstances if an employee simply failed to appear for work it might not constitute implied acceptance of a repudiatory breach as the reason for bringing the contract to an end. It would ordinarily be necessary to communicate to the employer a decision not to return to work because of the alleged breach. However, in the circumstances of this case, the employer could not have been in any doubt that the breaches were the cause of Mrs Ure’s decision not to come back.

Do you require any more information regarding constructive dismissal?

If you have any queries about constructive dismissal issues and/or disputes, please get in touch and we will be happy to advise you. 

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