The Employment Appeals Tribunal (‘EAT’) has overturned a decision of the Employment Tribunal (‘ET’) holding that constructive dismissal can be established if the last straw, or in other words the trigger for the resignation, is “entirely innocuous”.
The Claimant worked for the Respondent as a teacher and had a mental impairment making him disabled. He was informed that he was suspended due to a child protection matter and no further information was provided. His suspension was lifted and the Respondent commenced an internal disciplinary investigation. The Claimant then went off sick with stress and whilst on sick leave, raised a grievance in relation to the handling of the whole process. This was not upheld by the Respondent.
The Respondent discovered that after the Claimant was suspended he downloaded numerous documents from the school, breaching their data protection policy and therefore decided to re-suspend him and launch a second disciplinary investigation. Following the Claimant’s request for further information about the allegations against him being declined by the Respondent, the Claimant resigned and brought numerous claims in the employment tribunal (‘ET’), one of which was for unfair constructive dismissal.
In constructive dismissal claims, an employee can rely on the "last straw" doctrine, allowing them to resign in response to a series of breaches of contract or a course of conduct by their employer which, taken as a whole, amounts to a breach of the implied term of trust and confidence. The law straw must not be a trivial or an innocuous act. The Claimant relied on the Respondent’s refusal to allow him to contact his union representative as the last straw.
The ET held that the Claimant had not be constructively dismissed, as the last straw was innocuous and therefore cannot contribute to the previous actions of the respondent. The Claimant appealed.
The EAT allowed the appeal and disagreed with the decision of the ET, holding that:
"so long as there has been conduct which amounts to a fundamental breach, the breach has not been affirmed, and the employee does resign at least partly in response to it, constructive dismissal is made out. That is so, even if other, more recent, conduct has also contributed to the decision to resign."
It was held that in the tribunal had made an erroneous assumption that the last event in time, the refusal to allow the Claimant to contact their union representative, was the last straw. They therefore failed to consider whether the earlier conduct itself established a fundamental breach, which had not been affirmed, and which also subsequently contributed to the decision to resign, when it came.
The EAT substituted a finding of constructive unfair dismissal.
- Implications for employers
The case provides useful guidance around the scope of the ‘last straw’ doctrine and acts as a reminder to employers that despite an employee relying on an innocuous triggering event, constructive dismissal may be established. This will depend on prior conduct which contributed to the employee’s decision to resign, provided the employee has not affirmed any breach of the implied term of trust and confidence.