In Craig v Abellio Limited, the EAT reiterated the principles of the ‘last straw doctrine’ in constructive dismissal, specifically highlighting the focus that needs to be applied to the context of the employment relationship leading up to the ‘last straw’ incident.
The claimant, a bus driver, had been employed by the respondent from July 2014 up until his resignation on 20 July 2019. During that time and particularly from 2016 onwards, the claimant had raised several issues and errors on the part of the respondent in relation to the calculation of his hours worked and sick pay entitlements. When the claimant brought an internal grievance regarding these issues, the grievance panel erroneously concluded that the claimant owed £2000 to the respondent in overpayments. The subsequent grievance appeal recognised the error and found that the claimant was in fact owed just over £6000 by the respondent, which was to be paid in the next payroll, due on 19 July 2019.
Due to an administrative error (the respondent’s payroll department raised a query regarding the sum), the payment was not made on 19 July. In response, the claimant resigned the next day, claiming that this represented the ‘last straw’ in the respondent’s treatment of him, so as to find a claim for constructive dismissal.
The employment tribunal relied on the respondent’s assertion that an administrative error meant that the payment had not been made in the July payroll. The ET found that non-payment was not a repudiatory breach and could not therefore meet the principles of the ‘last straw doctrine’.
However, the EAT found that the ET had made an error in law, having not engaged with the legal principles of the last straw doctrine. The ET decision had failed to give adequate consideration to the history of the matter, in that the claimant’s complaint regarding non-payment on the 19 July was just one in a long history of errors and deficiencies in the respondent’s conduct. The claimant was not aware or informed that non-payment was due to a simple administrative mistake. All the claimant knew was, to borrow the phrasing of the EAT, that; ‘He was told that it was going to be paid. It then was not paid.’ Given the ‘litany’ of past errors by the respondent: ‘The claimant may well have been entitled to form the view that he was being mistreated again by the respondent.’ The EAT remitted the case for hearing at a newly constituted tribunal.
This is a helpful reiteration by the EAT of the importance of context and past events in constructive dismissal claims. It is also a reminder for solicitors and tribunals not to put undue weight on the severity of the ‘last straw’ incident in deciding whether an actionable case for constructive dismissal has been founded. Again, to borrow from the judgment of the EAT: ‘…it is not necessary for the last straw itself to be a breach or a particularly weighty matter.’
This blog was written by Michael Green, Trainee Solicitor at didlaw.
