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MOrsel: Constructive Dismissal – is an innocuous "last straw" still a last straw?

[Dynamic date]

08 June 2020

  • In a recent case before the UK Employment Appeal Tribunal (the EAT) it was held that the final event that led to the resignation of an employee could be entirely innocuous and still amount to constructive dismissal on the part of the employer, provided that the employee had not already affirmed that breach of contract.

    Prior to the case of Williams v Alderman Davies Church in Wales Primary School (William v Alderman), the last straw doctrine provided that if an employee resigned following a series of breaches of contract by the employer, but the last event was entirely innocuous and did not contribute to the breach, then a claim for constructive dismissal could not be brought.

    However, in the case of William v Alderman, a teacher brought a complaint against the school relating to how the school handled a series of disciplinary investigations. The 'last straw' in this case was that another member of staff who was deemed to be involved in the case was prohibited from contacting him. Whilst this action was found to be reasonable, the EAT stated:

    so long as there has been conduct which amounts to a fundamental breach, [the breach has not been affirmed], and the employee does resign at least partly in response to it, constructive dismissal is made out. That is so, even if other, more recent, conduct has also contributed to the decision to resign.

    The impact that this can have for employers is that provided an employee has not already affirmed a breach, reasonable and seemingly innocuous acts may revive an earlier fundamental breach of contract. As long as the event contributes to the employee's decision to resign, it may lead to a constructive dismissal claim.