The claimant worked for a company, Blue Ridge Equestrian Ltd, which was owned by her father.  Blue Ridge stopped trading and all of their employees, including the claimant, were transferred to the respondent, Chemcem Scotland. The claimant’s father had a majority shareholding in the respondent company.  As part of the transfer, the respondent inherited responsibility for the claimant and any claims which arose from her period of employment with Blue Ridge.

In September 2016, the claimant went on maternity leave and was paid SMP by the respondent.   The claimant was in touch with her father regularly throughout the maternity leave.  However, the relationship had become strained as her father was in the process of divorcing the claimant’s mother.  Furthermore, the father had started a new relationship with a member of staff of the respondent.  This strained relationship led to some difficulties with the employee-employer relationship such as a lack of communication of work matters.

At the end of the maternity period, the claimant did not return to work citing the communication and issues she had with her father.  She argued that the Respondent’s actions constituted a breach of the implied term of mutual trust and confidence and so made a claim of constructive dismissal.   At first instance, the Employment Tribunal found that the contract had been terminated on 25th September 2017 when the claimant was due to return to work and did not do so.   The Tribunal found that there were a number of instances during the maternity period which were repudiatory in nature.  This included varying her wage without explanation, failure to pay SMP on time and failure to answer the claimant’s queries about entitlements.  Accordingly, the claimant was entitled to accept that repudiation of her contract and treat herself as being dismissed.

At the EAT, the respondent appealed arguing that the claimant had failed to communicate the acceptance of the repudiatory acts and therefore as a matter of law there was no termination of the contract.  The EAT held (1) that the ET was correct to treat the various repudiatory acts as a sufficient ground for the Claimant’s decision to rescind the contract and claim constructive dismissal; and (2) that while ordinarily it was necessary to communicate a decision not to return to work, the circumstances of this case were eloquent of such a decision and the employer could not have been in any doubt that this was what she intended; and decision of ET affirmed.

That is not without foundation as seen in Weathersfield Ltd v Sargeant [1999] where the acceptance could be by implication.  For this reason, the appeal was dismissed.

Practical Lessons

This case demonstrates that the issue of whether there has been an acceptance of repudiation by implication is a question of fact rather than one of law.  The Tribunal will look at various issues but the fact that it was a familial situation and it was a strained relationship could still enter the employment field and be taken into account for determining whether there has been a breach of the implied term of trust and confidence.
https://www.gov.uk/employment-appeal-tribunal-decisions/chemcem-scotland-ltd-v-mrs-kirsty-ure-ukeats-0036-19-ss