12 May 2020
The Scope of the Last Straw Doctrine: Identifying The Camel’s Back. Williams v The Governing Body of Alderman Davies Church in Wales Primary School UKEAT/0109/19/LA.
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  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.