EAT rules that no show equals constructive dismissal

The Employment Appeal Tribunal (EAT) has held that an employee refusing to return to work following the end of her maternity leave amounted to her acceptance of a repudiatory breach, meaning that her claim for constructive dismissal could succeed.

Claims for constructive unfair dismissal can be brought when an employee can demonstrate that their employer acted in a way that served to breach the implied term of mutual trust and confidence between them. This can amount to a breach of the employment contract but needs to be a repudiatory or fundamental breach that leads to the employee resigning. In order to go down the constructive dismissal route, employees need to demonstrate that they accept the breach and will therefore be taking further action, such as resigning. They then need to prove to the Employment Tribunal (ET) that the employer’s conduct led to their resignation.

This case concerned an employee who had gone on maternity leave and was due to return to her role but didn’t. This was because, during her leave period, her employer had varied her pay without informing and consulting with her, switched her to a different payroll, and failed to provide her with statutory maternity pay (SMP) on time, due to a personal issue between her and a shareholder (who was also her father). The employee not only refused to return to work but, crucially, did not communicate her intention to resign from her position to her employer. She instead went to the ET, citing constructive dismissal.

The ET upheld her claim, finding that the acts committed by her employer had served to breach the mutual term of trust and confidence between both parties. They also held that her failure to return to work amounted, for the purposes of the law, to a communication that she had decided not to return due to these breaches. This meant that she had accepted the breach and had therefore been free to pursue the claim of constructive dismissal.

Her employer appealed against this decision arguing that because she had failed to communicate her acceptance of the changes to her contract, by failing to communicate with them at all, her claim should have been struck out.

The EAT dismissed the appeal, finding that the ET had reached their conclusions correctly. In forming their decision, the EAT accepted that her failure to communicate with her employer may, under normal circumstances, have meant that her claim could not succeed. However, they also addressed the circumstances surrounding her claim. It was clear that the employee had chosen not to return to work because of the way her employer, and in particular her father, had treated her.

The EAT went further to say that the ET had correctly determined that this was the reason for her actions. They had therefore gone on to correctly conclude that, as a result of this, her non-appearance had amounted to her acceptance of the breach. This meant her constructive dismissal claim could succeed.

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