Employment Law Cases
Constructive dismissal and the 'last straw'
Williams v Alderman Davies Church in Wales Primary School
Just because a last straw was not actually a last straw did not mean that a constructive unfair dismissal claim could not proceed.
Constructive dismissal is when an employee resigns in response to their employer’s conduct and then brings an employment tribunal claim saying they were forced to resign. It’s a concept grounded in contract law, i.e. for a claim to succeed, the employee must show that their employer’s conduct was so bad (what’s called a repudiatory breach of contract) that it destroyed the employment contract, thus entitling them to resign. The ‘last straw’ concept in constructive dismissal cases allows a claimant to rely on the totality of an employer’s acts, even though earlier breaches by the employer may have been affirmed, so long as the final act forms part of a series.
Mr Williams, a teacher, was disabled. He was suspended for a child protection issue, but no further action was taken, and his suspension was lifted. He was allowed to return to school, but not to teaching duties, and the school started a disciplinary. He was then asked to organise a sports day and went off sick with severe stress, never to return. Whilst off sick he was re-suspended for breach of the school’s data protection policy (downloading material he believed relevant to his disciplinary). He then brought an unsuccessful grievance before resigning three days after the school refused to identify the child protection complainant. Among his many claims was one for unfair constructive dismissal.
A tribunal dismissed this claim. The ‘last straw’ was, held the tribunal, the school’s refusal to allow him to contact his union rep. However, the tribunal held that this act (which it referred to as ‘innocuous’) did not contribute to any breach of contract and was not a ‘last straw’. Therefore, despite previous poor conduct on the part of the employer (on which Mr Williams could have made out a breach and which he had not affirmed), he had not resigned in response to a fundamental breach of contract. Mr Williams appealed.
His appeal was allowed.
The tribunal had approached it incorrectly. Referring to Kaur v Leeds Teaching Hospitals NHS Trust, the EAT held that the tribunal should have looked at earlier acts to consider whether they added up to a fundamental breach of contract and whether Mr Williams had affirmed those acts. So long as there has been conduct which amounts to a fundamental breach, and the employee resigns 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.
Had the tribunal applied the law correctly, it would have found that there was a constructive dismissal. It had found that there was prior conduct which contributed to the decision to resign, and which amounted to a breach of the implied term of trust and confidence. It could not have properly found that such conduct had been followed by affirmation. A finding of unfair constructive dismissal was therefore substituted.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0108_19_2001.html
This is likely to be a case which turns on its particular facts. In most cases, where an employee has not reacted to a breach but continues in employment, then they face the possibility of a tribunal deciding that they have ‘affirmed’ the breach and so cannot bring a claim for constructive dismissal.