Does the “last straw” have to be a significant breach in a constructive dismissal claim?

In the case of Marshall v McPherson Limited, the Employment Appeal Tribunal (“EAT”) considered that the final or “last” straw that prompted Mr Marshall (“the Claimant”) to resign did not, in isolation, need to be a serious breach of contract. The EAT determined that what the Employment Tribunal (“ET”) should have focused on the course of conduct by McPherson Limited (“the Respondent”) towards the Claimant in its entirety, and whether this cumulatively amounted to a repudiatory breach of the duty of trust and confidence.

Background

The key facts to this claim are as follows:

• The Respondent is a large haulage company and much of their work is with local whisky distillers. They are contracted, amongst other things, to remove spent grain (draff) from the distilleries following the distilling process. This draff is transported to biomethane plants by the Respondent’s employees.
• The Claimant, an experienced Heavy Goods Vehicle driver, was contracted as an overnight driver to take draff from nearby distilleries and supply it to a biomethane plant.
• Part of the Claimant’s duties were to tip the draff into the “intake hopper” of the plant. This hopper needed to be filled to allow draff to be continuously fed into the plant which ran on a 24-hour process. In addition, other drivers would deliver trailers full of material for the Claimant to tip into the hopper. He would be expected to unload the trailers delivered during the shift and have the empty box ready for use by the other drivers.
• When the Claimant first began work at the plant, there were two intakes each with their own hopper. It would take 20 minutes for the largest hopper to be depleted, which gave the Claimant time to take breaks if needed.
• In May 2023, the plant introduced a new system. This system took far less time to empty the hopper, which if empty at any given point would bring the process at the plant to a halt. This, alongside breakdowns and stoppages at the plant, led to the Claimant feeling pressure and he found it difficult to take breaks and complete his duties. He resorted to manipulating his tachograph in his lorry to make it seem like he had taken scheduled breaks. The Claimant informed the Respondent of these difficulties, but they were not recorded as an issue.
• The Respondent instructed another driver to accompany the Claimant on 6 and 7 November to check to see if the draff was being tipped properly. The Claimant was not given any warning of this and was unhappy with this. At the end of his shift, he contacted the Respondent, and they arranged a meeting on 13 November 2023 to discuss matters. The Claimant raised his concerns and highlighted the lack of a risk assessment to the Respondent, but this was not pursued.
• The Claimant was offered a temporary transfer but declined this on the basis that he believed the Respondent continued to ignore his complaints. The Respondent informed the Claimant that he would remain unpaid as a result of refusing this temporary transfer.
• The Respondent had investigated the Claimant’s allegations regarding the incidents in 2017 and found that the Claimant’s concerns had not been contemporaneously recorded by the Respondent’s employees at the time.
• In December 2023, the Claimant also discovered from a “day driver” that they were permitted to ask other drivers to support them with the tipping, permitting them to take breaks, something that was not available to the Claimant.
• It was in response to this ‘final straw’ that the Claimant then resigned on 20 December 2023, considering it constructive dismissal.

The law

The law on constructive dismissal is extensive, with judges having to take a range of judgments into account. When reviewing this decision in isolation, the following appear relevant

Section 95(1)(c) of the Employment Rights Act 1996 permits an employee to be considered as “dismissed” for the purposes of an Unfair Dismissal claim under the Act where the employee “terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.

Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978 summarises a 5-stage test when considering whether an employee has been dismissed under Section 95(1)(c):

1. What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?
2. Has he or she affirmed the contract since that act?
3. If not, was that act (or omission) by itself a repudiatory breach of contract?
4. If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the duty of trust and confidence?
5. Did the employee resign in response (or partly in response) to that breach?

ET Decision

The ET dismissed the Claimant’s claim on the basis that the “last straw” was not repudiatory in nature and therefore could not “revive” earlier breaches and that the scope of their review of whether there was a repudiatory breach was limited to the “last straw” and not the earlier course of conduct.

The Claimant appealed on three grounds, one being that the ET had misdirected itself in its application of the law.

EAT Decision

The EAT decided that the Claimant’s appeal succeeded, and that the matter should be remitted back to a fresh ET.

The EAT said the ET had misled themselves under their use of the test in Kaur and focused, erroneously, on whether the “last straw” was repudiatory in nature. The ET had determined that as the “last straw” was not repudiatory in nature, it did not revive the earlier breaches pleaded by the Claimant. The EAT deemed that this was a fundamental misdirection as the “last straw” does not need to be repudiatory, or even a breach of contract. The “last straw” merely needs to contribute to a cumulative breach of the implied term of trust and confidence.

The EAT further deemed that the ET had failed to apply the fourth and fifth stages of Kaur and did not fully consider the cumulative course of conduct and the extent the Claimant resigned in response to the overall behaviour.

The EAT noted that the ET had found, themselves, that the 2017 incidents could have been a breach in isolation, which contradicts the ultimate conclusion that it had reached.

Comment

This decision does not dramatically change the application of the legal tests for a constructive dismissal claim, but it does draw attention to how employers and employment practitioners should consider “last straw” constructive dismissal claims.

It is not uncommon for employers to wrongly assume that because the last act relied on by an employee before resigning is not significant or repudiatory, or even a breach, that a Tribunal would not find that this is a matter of constructive dismissal. It is very easy to mistakenly focus on the “last straw” in isolation rather than identifying that this was the “last straw” over a cumulative course of conduct.

Employers must be wary of the overall assessment of the reasonableness of their behaviour, rather than the most recent acts in isolation.

Case Reference: Marshall v McPherson Limited [2025] EAT 100