In Marshall v McPherson Limited, the Employment Tribunal had dismissed the Claimant’s claim for constructive unfair dismissal on the basis that there was no “final straw” causing him to resign.
Background
The Claimant was a driver for the Respondent, which operated a haulage business. The Respondent changed to double its capacity which meant that the Claimant found it difficult to take his required breaks and was struggling to keep up with the increased pressure. He raised his concerns with his managers, but these were dismissed. A few months later, the Claimant was further upset when a colleague unexpectedly turned up to observe him and report back on whether the work was being done properly.
This led the Claimant to leave work, stating to the Respondent that he was unable to return until the issued were addressed. The Claimant requested details of the investigation into these issues and highlighted health and safety incidences that had occurred a few years prior. As this was not forthcoming, even after Acas Conciliation, the Claimant resigned and submitted a claim.
The Employment Tribunal found that the health and safety incidences constituted repudiatory acts, i.e. that they were such serious breaches that it would entitle the Claimant to terminate the employment contract. However, it did not consider the monitoring of the Claimant or the Respondent’s inadequacy in handling the Claimant’s grievance as repudiatory breaches. It concluded that if an act or omission is “not repudiatory in nature it will not revive earlier acts”, being the historic repudiatory health and safety incidences.
However, the Employment Appeal Tribunal held that this was a misdirection which incorrectly led the Tribunal to conclude there was no final straw. The correct approach is to consider whether, in a series of incidences where the final straw is not repudiatory, the acts or omissions cumulatively amount to a repudiatory breach. There is no requirement for the last straw itself to be repudiatory, and so the claim has been remitted to the Employment Tribunal to be re-heard.
Take aways
This serves as a reminder that the Tribunal will take into consideration all of the relevant facts in a case when assessing whether an employee resigned in response to an employer’s breaches, even if the latest incident does not appear to be particularly serious.
