What is “the last straw” in constructive dismissal claims?

In the case of Marshall v McPherson Limited, Marshall was a night-shift HGV driver working for the large haulage company, McPherson Limited.

After McPherson Limited introduced a new workplace system in May 2023, Marshall was feeling increasing pressure at work.

Marshall was struggling to cover his workload and felt unable to take breaks.

Marshall went to the Company about these issues.

They failed to act or make a record of these issues.

And when the Company later sent a colleague to accompany Marshall on his shift, they failed to give Marshall any warning of this happening in advance.

Marshall went on to arrange a meeting with the Company about this, and other events, some of which dated as far back as 2017.

The Company offered Marshall a temporary transfer.

Marshall declined on the basis that the Company was ignoring his complaints, and, in response, the Company claimed that Marshall would remain unpaid for refusing this offer.

In addition, the Company had previously failed to complete a risk assessment and make a record of existing incidents.

Marshall later also discovered that a day-shift driver had been allowed to ask other drivers for support and take breaks, when this hadn’t been possible for Marshall.

As a result, Marshall resigned and claimed constructive dismissal.

The Employment Tribunal (ET) initially dismissed Marshall’s claim on the basis that the “last straw” was not repudiatory in nature.

On appeal, the Employment Appeal Tribunal (EAT) stated that the “last straw” did not solely need to be a serious breach, and the overall pattern of behaviour is what mattered.

The EAT said that the ET failed to apply the 5-stage test from Kaur v Leeds Teaching Hospital NHS Trust when considering the “last straw” that led to Marshall’s resignation and claim.

The 5-stage test is as follows:

1. What was the most recent act/omission by the employer that led to the employee’s resignation?
2. Has the employee affirmed the contract since this act/omission?
3. If not, was the act/omission a repudiatory breach of contract?
4. If not, was it part of a course of conduct involving various acts/omissions, which would jointly amount to a breach of trust and confidence?
5. Did the employee resign in response to that breach?

Based on this, the EAT agreed with Marshall’s claim, stating that the “last straw” was part of a course of conduct which led to a breach of trust and confidence, and resulted in Marshall’s resignation.

The case has since been sent back to the ET to be reheard.

Employers should therefore ensure they deal with all employee concerns appropriately and transparently.

A single event can be large enough to justify resignation. Still, equally, employees can also draw on a pattern of behaviour, including minor incidents, which may lead to a breach of contract.

If an employee has raised repeated concerns or you are worried a situation is escalating, contact Solutions for HR for practical advice on next steps and how to protect the business.