Unfair dismissal claims can arise where an employee resigns in response to the employer’s repudiatory breach, or where an employer purports to accept a resignation that has in fact been withdrawn (thereby amounting to a dismissal).  Employers therefore need to tread carefully where there is uncertainty as to whether an employee has in fact resigned.

In Butcher v Surrey County Council, an employee gave notice of resignation after a dispute with a colleague she managed.  The employer asked her to reconsider, which she agreed to do if the dispute was resolved, and in the event she carried on working and being paid after her termination date.  She did not expressly withdraw her resignation, and claimed unfair dismissal when the employer subsequently decided she had indeed resigned.  The EAT held that the tribunal had been wrong to dismiss her claim as it had failed to consider whether there had been an implied agreement that the resignation was withdrawn.

The EAT in Chemcem Scotland Ltd v Ure held that an employee’s failure to return from maternity leave was, on the particular facts, an implied acceptance of the employer’s repudiatory breach enabling her to claim constructive dismissal, even though she had not expressly resigned.  The employer had committed various breaches while the employee was on leave, indicating the hostility of the claimant’s father (the majority shareholder) to her continued employment (she had a difficult relationship with her father, who was in a relationship with another employee), and no-one had got in touch to ask why she had not returned.  Although ordinarily it was necessary to communicate a decision not to return to work, in these circumstances the tribunal was entitled to find that her non-appearance was eloquent of an acceptance of the repudiatory acts and the employer could not have been in any doubt.  Employers should bear this possibility in mind where employees fail to return from parental leave, particularly if there have been ongoing disputes during the leave period, and should seek to confirm the reason.

Anna Henderson
Anna Henderson
Professional Support Consultant, Employment, London
+44 20 7466 2819