‘Last straw’ acts in constructive dismissal claims

In Williams v Alderman Davis Church in Wales Primary School, the Employment Appeal Tribunal (EAT) found that in claims of constructive dismissal, even if the ‘last straw’ act that led to a resignation is considered ‘innocuous’, in other words harmless, claimants can still rely on prior actions from the employer. 

To establish constructive dismissal, claimants must show that their employer’s actions amounted to a serious breach of contract that led to their resignation. However, this can be difficult to prove if they continue to work for the employer after such an action, as this can suggest their affirmation to this breach. The ‘last straw’ principle relates to the last in a series of actions by an employer which can, overall, lead to a breach.

This case concerned a claimant who worked for a school and was considered disabled due a mental impairment. He was suspended due to a child protection matter whilst the school implemented a disciplinary procedure. Prior to his suspension, the claimant downloaded a number of school files and shared them with his trade union representative, in an attempt to gather evidence he was being mistreated.

As the disciplinary procedure went on, the claimant was eventually informed that the accusations related to his mishandling of a child. However, the school refused to disclose any further information. In response, the claimant raised a grievance, citing the situation had been handled poorly and was having a negative impact upon him.

At this point the school discovered that the claimant had downloaded the files. They implemented a separate disciplinary against him, and the union representative, for breaching the school’s data protection policy. The claimant went on to write a detailed letter expressing his concerns and, three days later, resigned. His main reason for the resignation was that the school had refused to let him contact the union representative, which he labelled the ‘last straw’.

He later brought numerous claims to the employment tribunal, including constructive dismissal. The tribunal held that the claimant had not been constructively dismissed. This was because his ‘last straw’ act, the limiting of communication between him and his union representative, was reasonable due to the data protection issues and therefore innocuous.

The claimant appealed, arguing that even if the tribunal was correct to find that this final act had been innocuous, they should not have concluded that the constructive dismissal claim as a whole had to fail. The EAT agreed, outlining that in situations where an employer has breached the implied term of mutual trust and confidence between themselves and the employee through a number of actions, the ‘last straw’ does not necessarily need to be the last event in a point of time.

The EAT found that the tribunal had erred as they had failed to consider if the earlier conduct of the school had served to breach this term and if, by continuing working in his role, the claimant had affirmed his treatment. In the EAT’s view, it was clear that the employee had not affirmed this; his final resignation, despite being driven to by his ‘final straw’, had been done with all the previous actions, and concerns, in mind. This was evident due to the letter he had written three days prior.

Employers should remember that even if the act that leads to an employee resigning is found to be harmless, earlier acts may still result in liability for constructive dismissal. It is therefore important to remember what acts can lead to such a claim, such as significantly changing the terms and conditions of an employment contract or bullying behaviour.

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