How serious does the last straw have to be when claiming constructive dismissal?

It does not have to be a serious breach in its own right. 

The case of Marshall v McPherson concerned a night-shift HGV driver who raised repeated concerns about his workload and his inability to take breaks. His employer was not particularly helpful initially, telling him to manage the issue himself but later sent someone to help him on shift without giving him any warning that this person was going to be there. Mr Marshall was upset by this. He had raised complaints dating back to 2017 which had not been dealt with. This latest event led to his resignation. 

The first instance tribunal held that neither the delay in handling his grievance nor the sending of a shift worker to help him were serious enough to warrant Mr Marshall’s resignation and subsequent claim of constructive dismissal. The Employment Appeal Tribunal disagreed. 

The EAT held that the final straw which led to Mr Marshall’s resignation did not need to be a serious breach by itself. 

The correct approach to assessing the final straw is the application of the 5-stage test in Kaur v Leeds Teaching Hospitals NHS Trust.

The test is set out here:

1. What was the most recent act (or omission) by the employer which the employee says triggered their resignation?

2. Has the employee affirmed their contract since the resignation (by, for example, continuing to work)?

3. If not, was the act (or omission) by itself a repudiatory breach of contract (a breach striking at the heart of the employer-employee relationship so as to destroy the duty of trust and confidence)?

4. If not, was the act part of a course of conduct comprising a number of acts and omissions which viewed cumulatively amounted to a breach of the duty of trust and confidence?

5. Did the employee resign in response to that breach (or at least partly in response to that breach)?

The doctrine of constructive dismissal has become wider in recent years. Historically tribunals were more reluctant to find in favour of claimants. It is still a claim which challenges the employee to prove their case before the claim can even get off the ground however which is why we advise taking legal advice prior to any decision to resign. 

This blog was written by Manuela de Castro, Senior Solicitor at didlaw.