ET Erred in Considering ‘Last Straw’ in Constructive Dismissal

The Employment Appeal Tribunal (EAT) has upheld an HGV driver’s appeal against the rejection of his constructive unfair dismissal claim, finding that the Employment Tribunal (ET) had misdirected itself on the proper approach to considering the ‘last straw’.

The HGV driver’s role involved collecting spent grain from distilleries, taking it to a biogas plant and tipping it into an intake hopper. Following operational changes at the plant, he felt under pressure and found it difficult to take breaks and to complete his duties. He informed his line manager that he was having difficulties but was told to do what he could and ‘crack on’.

In November 2023, another driver was sent to accompany him during a shift and check if the grain was being tipped properly. He was annoyed by this as he had carried out his duties for many years without criticism of his abilities. He raised concerns with management, during which he expressed concern for his safety and wellbeing in the workplace. He resigned the following month.

Ruling on his constructive unfair dismissal claim, the ET concluded that his employer’s action in checking up on him was not a repudiatory breach of contract and was not capable of ‘reviving’ an earlier incident involving a near miss with overhead power lines while tipping at a property he was unfamiliar with during hours of darkness. The ET also found that delays in investigating his concerns did not amount to a repudiatory act. The HGV driver appealed to the EAT, arguing that the ET’s conclusion that if a ‘last straw’ is not repudiatory it will not revive earlier acts was a misdirection and thus an error of law.

The EAT observed that, as the parties agreed, the ET had correctly directed itself on the leading authorities on repudiatory breach of contract. However, the language it had used in its conclusion that if a last straw is not repudiatory it will not revive earlier acts suggested it had applied a different legal test from the one it had set out.

It could not be said with confidence that the ET had gone on to consider whether the act was nonetheless part of a course of conduct which, viewed cumulatively, amounted to a repudiatory breach, and whether the HGV driver had resigned in response, or partly in response, to that breach. Since its decision on the issue of the last straw meant that the ET had not looked at the question as a cumulative one, this error was properly described as fundamental. It followed that the ET had fallen into error in applying the law to the facts it had found established.

Upholding the appeal, the EAT remitted the claim to a freshly constituted ET for rehearing.