Last Straw

Did the tribunal err in failing to consider the last straw doctrine when concluding there was no repudiatory breach entitling the Claimant to resign and claim constructive dismissal?

Yes, held the EAT in Craig v Abellio.

The Claimant was a bus driver and had worked for the Respondent since 2014. He resigned in July 2019 following a period of sickness absence. He alleged that he had experienced numerous problems with his hours and pay, that during his sick leave he had not been paid the correct sick pay and the Respondent had failed to deal with his complaints. He raised a grievance which was initially rejected and then accepted on appeal. The appeal outcome was to pay the Claimant ￡6,000 in back pay by a specific date. The Respondent failed to make payment on time so he resigned claiming this was the 'last straw' following a pattern of poor treatment.

The tribunal held that the back pay issue was addressed through the grievance appeal and the missed payment date was a mistake, with neither amounting to a repudiatory breach of contract or a last straw event entitling the Claimant to resign.

The EAT held that the tribunal failed to engage with the Claimant's factual case on the 'last straw' and wrongly considered that the historical pay complaints had been remedied. In doing so it had failed to make appropriate factual findings and apply the principles of the last straw doctrine to the facts. The EAT ordered the case to be remitted to a newly constituted tribunal.

Thanks to Elizabeth McGlone of didlaw for preparing this case summary.