Chemcem Scotland Ltd v Ure

For constructive dismissal, an Employment Tribunal may find that a series of objectively repudiatory breaches of mutual trust and confidence entitled the employee to terminate the contract. The employee’s stated personal reason for not returning does not displace that finding where the Tribunal relied on other repudiatory conduct.

Acceptance of repudiation will ordinarily require communication. However, conduct may communicate acceptance where, in its factual context, it makes the employee’s decision unmistakable to the employer. Whether non-attendance communicates acceptance is a question of fact for the Tribunal.

The claimant did not return to work at the end of maternity leave and brought a claim of constructive unfair dismissal. The Employment Tribunal found a series of repudiatory acts, including unexplained changes to her wage arrangements, transfer to the payroll of a company nearing insolvency, delayed statutory maternity pay, and failures to answer her payment queries.

The employer appealed. It contended that the claimant left because statutory maternity pay had lawfully ended, and that she had not communicated acceptance of any repudiation. The appeal also concerned the Tribunal’s determination that her employment ended on 25 September 2017.

1. Appeals refused. The Employment Tribunal was entitled to hold that the employer’s cumulative conduct amounted to repudiatory breaches of the implied term of mutual trust and confidence. Its findings were not challenged as unsupported by the evidence or perverse.

2. The lawful cessation of statutory maternity pay could not itself found a repudiatory breach. But that did not undermine the Tribunal’s conclusion. The Tribunal had not relied upon the cessation of payment as the repudiation; it relied on other conduct over a prolonged period. The claimant’s reference to non-payment in her email explained her personal position but did not prevent an objective assessment of the repudiatory conduct.

3. Under section 95(1)(c) of the Employment Rights Act 1996, the Tribunal was entitled to treat the claimant’s failure to return on 25 September 2017 as acceptance of the repudiation. Although acceptance normally requires communication, non-attendance could communicate it in this context. It was for the Tribunal, as fact-finder, to decide whether the circumstances were eloquent of that decision. Applying Weathersfield Ltd v Sargeant [1999] ICR, the employer could not have been in doubt that the claimant did not intend to return.

4. In any event, an earlier preliminary decision had already fixed 25 September 2017 as the termination date. No appeal was brought against that decision. The full hearing reached the same conclusion.

• Employment Appeal Tribunal: appeals refused; the Employment Tribunal’s constructive dismissal decision and its reconsideration decision were affirmed.
• Employment Tribunal: at a preliminary hearing, determined that employment terminated on 25 September 2017. At the full hearing, found constructive unfair dismissal. The judgment refers to decisions dated 12 March 2019 and 22 May 2019, without citations.