After a period of mistreatment at the hands of his employer, encompassing a number of different acts or omissions, an employee resigns. The “trigger” for the resignation, the most recent incident (often identified as “the last straw”) has however been misinterpreted by the employee and is “entirely innocuous”; the employer did nothing wrong. The claim of constructive unfair dismissal fails, right?
Wrong.
In essence, those were the key findings the Employment Tribunal regarded as determinative of Mr Williams’ constructive unfair dismissal complaint. The ET, purportedly relying on
Omilaju v Waltham Forest London BC [2005] ICR 481, dismissed the claim on the basis that the last act which triggered Mr Williams’ resignation, was entirely innocuous. That was fatal, the ET held, because a final straw must contribute something, however slight, to the repudiatory breach. Entirely innocuous acts cannot do so. It therefore did not matter what had gone before. The ET reached that conclusion despite: - finding there was much “individually or cumulatively” that could be said to found a breach of the implied term of trust and confidence prior to the last straw; - there being no finding that the previous conduct had been affirmed. At the EAT, Mr Williams contended the ET had got it wrong; it had misunderstood or misapplied the last doctrine. The difficulty arose, in my view, because of a failure to appreciate that the “the last straw” can mean different things in different contexts. The “last straw doctrine” is a legal concept of application in two distinct constructive dismissal scenarios:
- If earlier conduct, either individually or cumulatively, was not sufficient on its own to give rise to a breach of the implied term of trust and confidence but, taken together with the “last straw”, is sufficient. In this situation, the last straw is what causes “the Malik threshold” to be crossed;
- If earlier conduct either individually or cumulatively has been affirmed. Then, it is necessary that there be a last straw which contributes something, however so slight, to the breach of the implied term in order for the employee to be able to rely on the earlier conduct together with the “last straw” as founding, cumulatively, a fundamental breach.[1]
The point at which the
Malik threshold is crossed is not, however, always the same point at which the employee resigns. For example, despite there being sufficient repudiatory conduct, the employee may wait before resigning but without having affirmed the contract. It may be the employee has lodged a grievance and is awaiting its conclusion; it may be the employee are simply considering their position. Thereafter, there is a further incident that the employee (wrongly) perceives as part and parcel of the same mistreatment and as contributing to the breach. The trigger proves to be innocuous, but the employee has in mind all that has gone before, including all the conduct that crossed the
Malik threshold and had not been affirmed. For Mr Williams, conduct which triggered his resignation was found to be an innocuous act. In lay terms this was “the last straw”. HHJ Auerbach in the EAT said this “colloquially” was the last straw. However, “it is not a last straw in the legal sense at all” [§37]. It was the trigger, but his resignation was also in part a response to an already crystallised repudiatory breach that had not been affirmed. In other words, the last straw was not the only reason for his resignation; there were other straws. The other straws were sufficient to cross the
Malik threshold and had not been affirmed. That was sufficient to found a claim of constructive dismissal. Were that not the case, Mr Williams asked, by what legal mechanism had he lost the right to claim constructive dismissal in the face of repudiatory conduct? The EAT agreed and substituted a finding of constructive dismissal. This case illustrates there may be, in some cases, a difference between the lay/colloquial/chronological notion of “a last straw” and its specific legal meaning in the last straw doctrine. In the latter, the camel’s back broken by the last straw is the trust and confidence inherent in the employment contract. In the former, the camel’s back is the employee’s resolve to continue in employment. The two do not necessarily break at the same time. Often when they do not, and there is delay, there will also be affirmation such that any further conduct does have to be more than entirely innocuous. However, as with Mr Williams, that is not always the case. Practitioners ought therefore to think very carefully about how they plead and run such cases, in particular how they deploy the “last straw” language in cases where it is arguable the
Malik threshold has been crossed at some point prior to the last event, which it may better to refer to as the trigger event rather than the “last straw”, so as to avoid any confusion.
Andrew Sugarman represented Mr Williams at the EAT. The full judgment can be found
here. 12
th May 2020
[1] This category gave rise to some controversy recently after HHJ Hand took a wrong turn in
Vairea v Reed Business Information Ltd [2017] ICR D9 holding that, once affirmed, earlier conduct could no longer be relied upon because affirmation “emptied the scales”. That was corrected, and the orthodoxy restored, by the Court of Appeal in
Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR 1 which held to the contrary.
