If an employer fundamentally breaches a contract of employment (called a repudiatory breach), the employee may accept the breach, resign and claim unfair constructive dismissal. In Chemcem Scotland Ltd v Ure, the Employment Appeal Tribunal (EAT) held that the claimant’s failure to return to work after maternity leave constituted an acceptance of the company’s repudiatory acts, entitling her to resign and claim unfair dismissal. 

Basic facts 

Ms Ure went on paid maternity leave on 26 September 2016 from Blue Ridge Equestrian Ltd, a company owned by her father, Mr Beaton. When it ceased trading, her employment was transferred to Chemcem Scotland Ltd, where her father was the majority shareholder. 

During her leave, she was in touch with her father, Mr Beaton, about a number of issues that had arisen regarding her employment. However, the relationship between them was fraught as Mr Beaton was in the process of getting divorced from Ms Ure’s mother and had started a new relationship with a member of staff, Ms Thompson.

At the end of her maternity leave on 25 September 2017, Ms Ure did not return to work nor did she communicate that decision to her employer. Instead she lodged a tribunal claim alleging constructive dismissal as a result of a number of breaches of her contract leading to a breakdown in mutual trust and confidence between her and the company.

Relevant law 

Section 95(1) of the Employment Rights Act 1996 provides that “an employee is dismissed if… the employee terminates the contract under which he [sic] is employed… in circumstances in which he [sic] is entitled to terminate it without notice by reason of the employer’s conduct”.

Tribunal decision

The tribunal held that, although Ms Ure had stated in evidence that she had not returned to work after maternity leave because her maternity pay had been discontinued (in fact, the company was entitled to discontinue the payments), her employer had committed a number of repudiatory acts which entitled her to resign and claim constructive dismissal.

These included varying her wage arrangements without any explanation or warning; switching her from the payroll of Chemcem Scotland Ltd to Blue Ridge Equestrian Ltd, although it was on the verge of insolvency; and failing to pay her maternity pay on time in April and May, again without any explanation.

It concluded that, taken as a whole, the circumstances indicated that Mr Beaton was hostile to Ms Ure’s continued employment and had exhibited that hostility over a prolonged period. He was also aware that if she did return, his new partner Ms Thomson would come under her management, and he did not wish that to happen. In those circumstances, her failure to return constituted a communication of her decision not to do so.

The company appealed arguing that, as Ms Ure had not communicated her acceptance of the company’s various repudiatory acts, there could not as a matter of law be a termination of contract.

EAT decision 

Dismissing the appeal, the EAT held that while a failure to return to work might not in normal circumstances imply that Ms Ure had accepted the breaches of her contract, it “plainly could” in the context of this case and her employer could not have been in any doubt as to her intention. Indeed, the EAT surmised that the company was hoping and perhaps even expecting her not to return, the circumstances being “eloquent of the true position”.


The case suggests that there does not necessarily need to be an explicit communication of the acceptance of a breach. However, each case will be fact specific. In other circumstances, if an employee does not return to work, it might not constitute the acceptance of a repudiatory breach. If an employee is considering resigning, it would therefore be wise for them to make clear to the employer that they accept the repudiatory acts so they are not deemed to have waived the breach.