Resignation may be implied for constructive dismissal claim

In a constructive dismissal claim, the employee’s acceptance of a repudiatory breach by their employer does not have to be done by an express resignation and may be implied from all of the circumstances, according to the EAT.

Chemcem Scotland v Ure (UKEATS/0036/19/SS)

What are the practical implications of this judgment?

This judgment confirms that, in order to form the basis of a constructive dismissal claim, a resignation may be implied, or express. However, where possible, employees should resign expressly in order to avoid any doubt, in particular as this will affect when any time limit expires.

The circumstances in which a resignation is implied are likely to be rare. However, this judgment demonstrates that a failure to return from maternity leave may be such an instance, in an appropriate case. This issue is one that an employer will need to bear in mind when an employee fails to return from maternity (or other parental) leave, i.e. it will need to consider whether the employee is, in fact, accepting an alleged repudiatory breach by not returning. This may be very relevant where, for example, an employer has carried out a redundancy exercise while the employee has been off and/or is proposing that the employee returns to a different job after their leave.

Case details

• Court: Employment Appeal Tribunal
• Judge: Lord Summers
• Date judgment published: 28 October 2020

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