Employer’s ‘dirty laundry’ was aired on the shop floor.
A constructive dismissal can arise where an employer breaches the implied term of trust and confidence between employer and employee. The employee can then accept the breach and resign, saying they were pushed to do so as a result of the breach. The EAT has looked recently at what constitutes acceptance of a breach and whether a simple failure to return to work following maternity leave is enough to communicate acceptance of a repudiatory breach of contract.
The facts of Chemcem v Ureare a little unusual. The employee was the daughter of the majority shareholder of the business. The employee’s father had left the employee’s mother and had formed a relationship with a colleague. Family relationships became strained and the employer made things difficult for the employee by varying her pay arrangements without warning, switching her employment to the payroll of another company which was about to become insolvent, failing to pay her maternity pay on time and not only failing to answer her queries but deliberately misleading her. The employee didn’t return to work after maternity leave and brought a constructive unfair dismissal claim. The employer said that her failure to return to work was not enough to communicate her acceptance of any breach of contract, so her claim should fail.
The employment tribunal found that there had been a course of conduct whilst the employee was on maternity leave. The employment tribunal said that her employer (via her father) was hostile towards her and her continued employment, and this hostility had breached the implied term of mutual trust and confidence. Her failure to return to work was sufficient to accept the breach and bring her employment to an end. The EAT agreed. In this case, on its unusual facts, the employee’s failure to return to work was enough to communicate acceptance of the breach. The tribunal had found that the employee’s father did not want her to return to work because she would be managing his new partner. When she didn’t return to work, no one even asked where she was. The employee did not need to say any more – the employer was clearly hoping and perhaps even expecting her not to return.
This case is unusual. It involves a family run business with its dirty laundry being hung out on the shop floor. A failure to show up for work won’t often be enough to communicate acceptance of a breach of contract. There are learning points to take away though, especially for family run businesses. It is within these close-knit environments that the letter of the law and the finer detail of company policy often goes awry. It is exactly because of these close relationships that particular care must be taken to formalise the employment relationship, and any issues that arise within it, however close or informal the relationships outside the office.
