Case law: guidance on ‘last straw’ in constructive dismissal claims

By: Aengus Collins

Date: 19 June 2009

Employers will welcome guidance in a recent case on what amounts to the ‘last straw’, where an employee leaves following a series of actions by the employer which, when taken together, constitute a breach of trust and confidence.

The facts of this case were as follows: an employee had an informal meeting with his line manager, at which he was advised of 13 areas of concern regarding the performance of his duties; he was told that the interview was the precursor to a formal disciplinary interview. After receiving the notes of the meeting, the employee became extremely depressed, and did not return to work again. There was correspondence over a period of six months between the employee and employer, with a view to resolving the outstanding issues but, ultimately, the employee resigned. He brought a claim in the employment tribunal for constructive dismissal, alleging that one of two letters from the employer had been the ‘last straw’, breaching the implied duty of trust and confidence.

The tribunal upheld the employee’s claim that he had been unfairly dismissed. However, the Employment Appeal Tribunal (EAT) allowed the employer’s appeal, on the basis that the tribunal had failed to identify the ‘last straw’; and, in any event, the letters put forward as potentially being the ‘last straw’ could not reasonably have been viewed as such by any tribunal, as they were written in professional and appropriate terms, and genuinely sought to resolve the issues.

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