Constructive dismissal – the ‘last straw’ need not be a serious breach

In the recent case of Marshall v McPherson Limited, it was held that the final act, often referred to as the ‘last straw’, need not be a serious breach for a claim of constructive dismissal to be successful.

Background

The Claimant (C), an experienced night-shift HGV driver for McPherson Limited (R), was responsible for transporting draff from distilleries and unloading it into the plant’s 24-hour intake hopper.

Initially, drivers could use two intakes, allowing them to fill one while handling other tasks or taking breaks. In May 2023, a single intake system was implemented, which doubled draff capacity and emptied the hopper faster, increasing pressure on C and making it harder for him to take breaks. When C told his manager, he was told to “do what he could and crack on,” with no formal record of the complaint being made.

In November 2023, R sent another driver to observe C’s work without warning, which upset C as no issues had previously been raised with his work. C subsequently emailed R to communicate concerns that made him feel unable to return to work, including two unresolved safety incidents from 2017. He declined an offer for a temporary local driving transfer, referencing previously unaddressed complaints. Following this, R informed C that he would not be paid.

R discussed break difficulties with the day driver, who said he could have another driver tip his load to allow for breaks. C did not have this option.

C resigned and claimed constructive dismissal at the Employment Tribunal (ET), alleging R’s overall actions amounted to a repudiatory breach of the implied term of trust and confidence.

ET Decision

The ET rejected C’s claim, finding that there was no fundamental breach of contract.

The ET found that the “last straw” was not serious enough for a repudiatory breach and could not be combined with previous 2017 incidents to constitute such a breach.

Employment Appeal Tribunal (EAT) Decision

The EAT upheld C’s appeal, stating that the ‘last straw’ prompting resignation does not need to constitute a serious breach on its own. The key consideration is the overall course of conduct and whether it collectively amounts to a breach of trust and confidence. The ET erred by not considering whether all incidents, including those from 2017, together formed a fundamental breach.

Comment

This case highlights that all relevant facts are considered when determining if an employee resigned due to employer breaches; the final act only needs to contribute to the breach, not be severe. Addressing employee concerns in a timely manner and maintaining employee satisfaction may therefore assist employers in lowering the likelihood of constructive dismissal claims.

For further advice on managing the risk of constructive dismissal claims, please contact a member of the Employment team.