The ‘last straw’ principle may be applied to overall patterns of behaviour that amount to a breach of trust and confidence. James Siwela highlights the importance of this doctrine following a recent Employment Appeal Tribunal decision.
Background
In the recent case of Marshall v McPherson Limited, the Employment Appeal Tribunal (EAT) considered the law around the “last straw” doctrine in constructive dismissal claims.
The claimant, James Marshall, was an experienced HGV driver who had been employed by McPherson Limited since 2017, primarily transporting materials from distilleries to plant intake hoppers of nearby distilleries.
In May 2023 the mill introduced a new system that required less time to deplete the hopper. The claimant felt under extra pressure as a result. He found it increasingly difficult to keep up with the demand and struggled to take breaks and complete his duties. The claimant went as far as manipulating his tachograph to make it appear as though he had taken regular breaks.
The claimant initially raised this with a manager and was simply told to “crack on.” During November 2023 while the claimant was working a night shift, another driver was assigned to accompany him without warning and report back to management. As an experienced driver who had done this work for many years without criticism, the claimant decided he wanted to leave his position.
The claimant emailed the Operations Manager to set out his concerns and a meeting took place where the claimant’s difficulties taking breaks were discussed along with incidents that had occurred in 2017.
Following the meeting, the Operations Manager informed the claimant he was being allocated to a different local driving role and asked him to report there the next day. The claimant declined the transfer as he felt his previous and current complaints had been ignored. The Operations Manager then stated that as the claimant was refusing the temporary move, he would remain unpaid.
Following this, the claimant requested details of the investigations carried out as he had raised concerns about his health and safety, having suffered a near miss and being unintentionally exposed to caustic steam in 2017.
The claimant officially resigned on 20 December 2023, stating he considered it a constructive dismissal and pursued his claim to the Employment Tribunal (ET).
Applicable law
A claim for constructive dismissal under Section 95(1)(c) of the Employment Rights Act 1996 arises where the employee terminates the contract of employment in response to a fundamental or repudiatory breach of contract by the employer.
Under the “last straw” principle, an employee can resign in response to a series of breaches of contract or a course of conduct by their employer which, taken cumulatively, amounts to a breach of the implied term of trust and confidence.
Decision
At first instance the ET dismissed the claim for constructive unfair dismissal, in part as the employer’s conduct in checking up on the claimant and the delay in dealing with his grievance appeared minor and did not amount to a “last straw”.
The claimant appealed against the decision to the EAT.
The claimant’s appeal was successful as the ET had failed to apply the correct legal test from the case of Kaur v Leeds Teaching Hospitals NHS Trust [2018].
The five-stage test in Kaur is as follows:
- What was the most recent act or omission by the employer which the employee views as triggering the termination of their contract?
- Has the employee affirmed the contract since that act?
- If not, was the act or omission, by itself, a repudiatory breach of contract?
- If not, was it part of a course of conduct comprising of several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of trust and confidence?
- Did the employee resign in response, or partly in response to that breach?
The ET was found not to have considered the fourth or fifth part of the test. On reviewing the facts it did appear the claimant resigned in response to the conduct of the employer and there were several acts or omissions that Mr Marshall deemed a breach of trust and confidence. The claimant had made it clear he felt his concerns had not been properly addressed and promptly resigned following the meeting in December 2023.
The EAT also considered the understanding of the “last straw” in the case of London Borough of Waltham Forrest v Omilaju [2005]. There, it was found that the “last straw” need not be viewed, by itself, as amounting to a serious breach of contract.
Therefore, the tribunal had fallen into error by interpreting the final act as needing to be repudiatory in nature, placing the bar too high for the claimant to justify terminating their contract.
What was important was whether there was an overall pattern of behaviour and whether, cumulatively, it amounted to a fundamental breach of trust and confidence.
Comment
James Siwela, Trainee Solicitor in our employment team comments:
“This case is an example to employers of the need to act promptly and reasonably to address concerns raised by an employee.
“In this case the EAT confirmed that “last straw” does not need to amount to a repudiatory breach of their contract, so where an employee has raised concerns, employers need to be alive to the risks of an employee alleging that the employer’s overall pattern of behaviour towards them could, as a whole, entitle the employee to resign and claim constructive dismissal.”
Published 10 September 2025
