Constructive Dismissal – The Last Straw

Can a claim for constructive dismissal succeed even where the “last straw” tipping the employee into resigning is completely innocuous? Yes, held the Employment Appeal Tribunal in the recent case of Williams v Alderman Davies Church in Wales Primary School.

Williams v Alderman Davies Church in Wales Primary School

Background

In certain circumstances and depending on the employer’s conduct in question, an employee may be entitled to resign and claim that they have been constructively dismissed as a result of the employer’s poor behaviour.

In order for a constructive dismissal claim to succeed, it must be established that:

1. There has been an actual or anticipatory breach of contract by the employer which amounts to a fundamental or repudiatory breach that is sufficiently serious to justify the employee’s resignation;
2. The employee must resign in response to that breach; and
3. The employee must resign without delay in response to that breach, otherwise there is a risk that the employee may be deemed to have affirmed the contract and waived the breach in question.

It is well established in case law that a breach does not have to be a one-off act and that an employee is entitled to resign and claim constructive dismissal in response to a series of events and an employer’s cumulative conduct.

The last act of the employer ultimately leading to the employee’s resignation is commonly known as the last straw. There is no requirement that a last straw act amounts to a breach of contract, but it must contribute in a non-trivial way to the overall cumulative breach that the employee is resigning in response to. This means that even if an employee has continued working and in doing so affirmed the contract following a fundamental breach (or breaches) by their employer, it is still possible for a subsequent last straw event to occur that revives the employee’s ability to rely on the earlier fundamental breach (or breaches).

One of the most commonly relied on breaches is a breach of the implied term of trust and confidence that is implied into all contracts and requires an employer not to:

“without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust.”

Facts of the case

Mr Williams was a teacher and disabled by reason of a mental impairment which affected his reaction to stress and how he managed stressful situations.

In April 2015, he was suspended and told vaguely that this was a result of a child protection matter. In July 2015, after social services concluded that no further action should be taken in respect of the matter, Mr Williams returned to the school but was prohibited from carrying out his usual teaching duties whilst the school’s internal disciplinary investigation against him was on-going.

In September 2015, Mr Williams went off sick with severe symptoms of stress. Whilst on sick leave, in October 2015, Mr Williams was informed that the allegation against him was that he had manhandled a child, but was still not given details or who it was he was alleged to have manhandled or who had reported the allegation to enable him to prepare his defence to the allegations. He proceeded to raise a grievance relating to the school’s poor handling of the disciplinary process.

In February 2016, it came to the school’s attention that Mr Williams had downloaded many documents from their systems relating to their poor treatment of him and shared one of these with a colleague, Mrs Sydenham. The school suspended Mr Williams again and commenced a second disciplinary process against him for breach of their data protection policy.

When Mr Williams’ grievance was not upheld, he suspected that the school would recommence the first disciplinary process that had been put on hold whilst his grievance was being dealt with. He therefore requested more information about the allegations against him, but this request was declined. Mr Williams wrote a letter of complaint about this and the way in which he had been treated and three days later, on 16th June 2016, handed in a formal letter of resignation. The reason given in this letter for his resignation was that he had been told Mrs Sydenham was not allowed to contact him.

Employment Tribunal decision

The Employment Tribunal heavily criticised the school and their actions, but found that Mr Williams had not been constructively dismissed. This was on the basis that the last straw leading to Mr Williams’ resignation, i.e. him finding out that Mrs Sydenham was not allowed to contact him, was not unreasonable on the part of the school given the on-going disciplinary proceedings in relation to that matter.

The Employment Tribunal therefore held that the last straw conduct was so innocuous it could not contribute to the previous actions of the school, and that Mr Williams did not resign because of a breach of the implied term of trust and confidence.

Mr Williams appealed this decision.

Employment Appeal Tribunal decision

The Employment Appeal Tribunal upheld Mr Williams’ appeal and found that Mr Williams was clearly claiming that he resigned in response to what he regarded as a course of mistreatment over a period of time, and not just in response to the refusal to allow Mrs Sydenham to speak to him. They stated:

“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. It would be true in such a case that in point of time, it will be the later conduct that has ‘tipped’ the employee into resigning; but as a matter of causation, it is the combination of both the earlier and the later conduct that has together caused the employee to resign.”

Comment

Employers should be alive to the fact that even reasonable and arguably harmless acts on their part may revive an earlier fundamental breach, entitling the employee in question to resign and claim constructive dismissal. This is the case provided that the earlier fundamental breach contributes to the decision to resign and had not been affirmed.