The ‘last straw’ concept in constructive dismissal

The concept of constructive dismissal involves an employee being entitled to resign in response to a repudiatory breach of their employment contract, and consider themselves to have been dismissed.

The most straightforward breaches of contract that might result in such a claim would be significant changes being made to terms and conditions without the employee’s consent, failure to pay wages, or similar. Breaches of explicit terms of the contract. A breach of the implied term of trust and confidence can also result in a constructive dismissal claim.

But do breaches always have to be very serious in order for the employer to be vulnerable? The answer is they don’t, as there is a ‘last straw’ concept, whereby a potentially minor breach or minor incident, can be the ‘last straw’ in a serious of multiple events.

An employee can, under the last straw concept, resign in response to a series of events. They could be breaches of contract or just ongoing negative conduct, and resignation takes place when a final ‘straw’ occurs. In the event of a claim, the whole series of events would be looked at, and a view taken whether as a whole, they show that the employer did not intend to be bound by the contract.

The Court of Appeal gave useful guidance on what the final straw must ‘look like’ in order for a claim of constructive dismissal to succeed:

  • The final straw must contribute something to the breach, although what it adds might be relatively insignificant.
  • The final straw must not be utterly trivial.
  • The act does not have to be of the same character as earlier acts complained of.
  • It is not necessary to characterise the final straw as “unreasonable” or “blameworthy” conduct in isolation, though in most cases it is likely to be so.
  • An entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of their trust and confidence in the employer. The test of whether the employee’s trust and confidence has been undermined is objective.

This is useful guidance, although the challenge for employers is in anticipating potential claims, so that acts it may consider minor don’t end up forming the last straw in a claim.

One difficulty is that an employer may want to argue that if there are a series of more minor breaches, by carrying on working, the employee has accepted them, or ‘affirmed’ the contract. However, because the last straw concept involves a pattern of several incidents or breaches, the fact that they individually didn’t prompt the employee to resign, or even to challenge, doesn’t preclude a claim.

It’s useful, therefore, for HR professionals to develop a ‘radar’, and identify when there are multiple issues arising, even minor, with an individual. This could be multiple grievances, but not necessarily that formal. Retaining that overall picture can be useful in identifying a vulnerability, and ensuring that no patterns develop which could place the organisation at risk.

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