An Innocuous Final Straw?7 May 2020
Can constructive dismissal be established if the “final straw” event was an innocuous one? Yes, said the Employment Appeal Tribunal (EAT) in Williams v The Governing Body of Alderman Davies Church in Wales Primary School UKEAT/0108/19/LA.
Previous conduct of the employer that amounts to a fundamental breach can be considered by an Employment Tribunal, provided the contract has not been affirmed by the employee.
In this case, the Claimant (a teacher) failed in his claim of constructive unfair dismissal at the Cardiff Employment Tribunal. The final straw event he complained of was determined to be entirely innocuous by the Tribunal. The Tribunal concluded that – as a result of the final straw being innocuous – the Claimant had not resigned in response to a fundamental breach of contract. This was despite the fact that he had not affirmed the previous poor conduct by his employer (which amounted to a fundamental breach).
The EAT overturned the Tribunal’s decision; noting: “so long as there has been conduct which amounts to a fundamental breach, the right to resign in response to it has not been lost, and the employee does resign 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”.
The teacher’s appeal was successful and a finding of constructive unfair dismissal was substituted.