Nighat Sahi

Published 15 February 2021

Constructive Dismissal: Acceptance of Repudiatory Breach

An Employment Appeal Tribunal case has examined what constitutes acceptance of a repudiatory breach of an employment contract in a constructive dismissal case.

When a breach of contract is so serious that it is held that the contract has been terminated, this is referred to as a repudiatory breach. It is normally the case that where one party commits a repudiatory breach, the other party is required to communicate ‘acceptance’ of this breach, which then allows them to bring a claim for compensation.

Alternative options include carrying on working, which effectively waives the breach, or working under protest and commencing a formal complaint or legal action.

A recent Employment Appeals Tribunal case looked at specific circumstances where acceptance of a repudiatory breach was implied by behaviour, even though it was not communicated verbally or in writing.

Mrs K Ure v Chemcem Scotland Ltd 4105546/2017

The employment tribunal case of Ure v Chemcem Scotland Ltd considered a situation where an employer had committed a repudiatory breach of the employee’s contract and the employee subsequently failed to return to work after maternity leave.

The facts of the case

The claimant, U, was on maternity leave when her employer, CS, breached her contract of employment in a number of serious ways, including by failing to pay statutory maternity pay, varying her pay without warning, not answering her queries about her pay situation, moving her to a different payroll and misleading her.

Following the end of her maternity leave, U did not return to work. She did not communicate this decision but simply did not turn up. No attempt was made by CS to contact her.

Her employer was her father, who had left her mother for a new relationship with another staff member. Had U returned to work, she would have been this woman’s manager. 

An employment tribunal found that the breaches of contract were repudiatory and that by not returning to work she had communicated her acceptance of the contract breaches and the termination of her employment.

Employment Appeal Tribunal decision

The employer took the decision to appeal, claiming that U had not communicated her acceptance of the repudiatory acts and so it could not be held that the contract had been terminated.

The Employment Appeal Tribunal did not agree and upheld the original decision, dismissing the employer’s appeal.

Although in a normal case, failure to communicate might not be enough to imply acceptance of repudiatory breach of an employment contract, in this specific case it plainly was.

Because her father clearly no longer wanted her at work where she would be senior to his new partner and because no-one had contacted her to ask her why she had not returned, it could be implied that her failure to turn up to work amounted to an acceptance of the repudiatory acts.

Is communication of an acceptance of a breach necessary?

The case had unique circumstances and the Employment Appeal Tribunal noted that not turning up at work will not ordinarily imply acceptance of a repudiatory breach of contract. 

For those finding themselves in a similar situation, it would be wise to communicate. Employers whose employee fails to turn up should attempt to contact them and ascertain the reason. Employees facing a repudiatory breach of the terms of the employment contract are advised to seek legal advice. Despite the outcome of this case, communication of acceptance of a repudiatory breach seems likely to still be required. By failing to communicate, it could be held that a contract is still in force and by not turning up to work, an employee will themselves be in breach.

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