Constructive dismissal - ‘the last straw’

Within the case of Craig v Abellio Ltd [2022] EAT 43, the Employment Appeal Tribunal consider the ‘last straw’ principle when bringing a claim for constructive dismissal.

Section 95 Employment Rights Act 1996

(1)…an employee is dismissed by his employer if 

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

Craig v Abellio Ltd [2022] EAT 43

A bus driver alleged that during periods of sickness absence from work he had been wrongfully underpaid despite making several complaints about the issue. On appeal of an initially failed grievance procedure, he was awarded £6,000 to be paid by a specified date. After not being paid by the specified date, the claimant resigned claiming that this failure was ‘the last straw’ in a history of failures by his employer and proceeded to bring a claim for constructive unfair dismissal in the Employment Tribunal (ET).

At tribunal it was found that through agreeing to pay, the respondent had remedied the issue and as such, this failure to pay on time did not amount to a repudiatory breach and was merely the result of an administrative error.

However, the Employment Appeal Tribunal allowed the appeal, finding that the ET had failed to look at the legal principles applicable to a ‘last straw’ constructive dismissal, and had not taken into account the full sequence of events including the numerous historical complaints made by the claimant. The fact that ‘the last straw’ was down to an administrative error was not relevant and therefore remitted the case back to a new ET for a rehearing.

Vanessa Bell
Matthew Cole