The last straw: how multiple incidents can trigger a constructive dismissal claim

Background

The Respondent, McPherson Limited is a large haulage company and much of their work is with local whisky distilleries. One of their tasks is to remove spent grain (draff) from the distilleries during the distillery process. This draff then gets transported to biomethane plants where the Claimant was contracted to work. The Claimant, was an experienced HGV driver and worked for the Respondent as an overnight driver for three separate periods of time and under a contract of employment since 5 May 2017.

Both the day and nightshifts drivers’ duties were to transport draff to the plant and unload it into the intake hopper. In 2017, it would take 20 minutes for the hopper to empty before it needed refilling which allowed the Claimant to take breaks.

In May 2023, a new system was introduced which improved the speed in which the hopper would deplete. If the hopper became empty, the process would come to a halt and various breakdowns and stoppages led to a build-up of untipped draff. This put the Claimant under pressure and resulted in him manipulating the tachograph in his lorry to make it seem as though he had taken his scheduled breaks. The Claimant informed his line manager of the difficulties of not being able to take his breaks but was told to do what he could and to “crack on”. Crucially, these complaints were not recorded by the Claimant’s line manager at the time.

In November 2023, the Respondent, without giving the Claimant prior warning, instructed another driver to monitor the Claimant to check the role was being performed properly and to report back. At the end of the Claimant’s shift, the Claimant contacted the Respondent to arrange a meeting to discuss these matters. He also sent an email advising that he felt that that he was unable to return to work unless the issues raised were addressed. During the meeting, the Claimant also raised two incidents that had occurred in 2017. These issues related to unintentional exposure to caustic steam and a “near miss” involving overhead power lines. Following the meeting, the Respondent allocated the Claimant to a local driving role, but the Claimant declined the transfer feeling that his past and present complaints were being ignored by the Respondent.

At the end of November 2023, the Claimant contacted ACAS to commence early conciliation and began temporary work as an agency driver on 4 December 2023. The Claimant was still in that job by the time of the Employment Tribunal (ET) hearing in June 2024.

In December 2023, the Claimant’s line manager began investigations and met with the dayshift driver to discuss the difficulties of taking breaks and the day driver advised that although he could get assistance to enable him to take a break when needed – the night shift driver did not have that flexibility. It also came to light that following the incidents in 2017, the Claimant’s managers at the time who had since left the company did not put the Claimant’s concerns on record. In response to these investigations, the Claimant resigned considering it constructive dismissal on 20 December 2023.

EAT decision

The EAT allowed the appeal and concluded that the case should be remitted to a new ET for a rehearing. Although the ET had correctly set out the applicable legal principles it failed to apply those to the facts it found established. On the first ground of appeal, the EAT ruled that the ET misapplied the law on the “last straw” doctrine. Whilst the ET did go through the first three stages of the test taken from Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978, it could not be said with confidence that the rest of the test had been applied. The five-stage Kaur test is the following:

• 1. What was the employer’s most recent act or omission said to have triggered the resignation?
• 2. Has the employee affirmed the contract since that act?
• 3. If not, was that act or omission alone a repudiatory breach of contract?
• 4. If not, was it nevertheless part of a course of conduct which, when viewed cumulatively, amounted to a repudiatory breach?
• 5. Did the employee resign in response to that breach?

As the ET decided there was no final straw, the ET failed to consider whether all incidents from 2017 to 2023 cumulatively constituted a repudiatory breach of the implied term of trust and confidence. The EAT reaffirmed that a final act does not need to be “repudiatory in nature” for it to still form part of a cumulative breach, provided it contributes to the breakdown of trust and confidence. As the Claimant’s first ground of appeal was upheld, the appeal could have been concluded on that point. However, for the sake of completeness, the EAT went on to consider the other grounds of appeal.

Although the first and second grounds of appeal are inextricably linked, as the ET assessed each incident in isolation of each other, the ET’s application of the “last straw” doctrine was rendered unsound.

The final ground although did not have merit as a standalone challenge, was found to be established as the ET had overlooked the Respondent’s grievance process or even if there was one.