Case update (1): Unfair dismissal – is it the last straw?

Summary: If an employee resigns in response to a trivial act (which they consider the ‘last straw’) is previous conduct by an employer still relevant when deciding whether the employee has been (constructively) unfairly dismissed?

Yes, held the EAT in Williams v Alderman Davies Church in Wales Primary School (available here).

Background:   In order to succeed in a claim of constructive unfair dismissal, an employee has to show that the employer has fundamentally breached a term of their contract of employment. This is often the implied duty of trust and confidence. The “last straw” doctrine allows an employee to rely on a series of breaches over a period of time which together amount to a breach of trust and confidence. In previous case law, it has been decided that the last straw must not be something totally innocuous and that it must contribute something to the breach, although this may be insignificant.

Facts:  Mr Williams was a teacher in Alderman Davies Church in Wales Primary school. Allegations were made against him relating to a child protection matter. He was suspended but not given any details of the allegations against him. (He was only much later informed that the allegation was that he had manhandled a child).

A Social Services investigation decided that no further action should be taken and Mr Williams was allowed to return to school, but not to teaching duties while the school carried out its own investigation. He was still not at this stage given full details of the allegation he was facing and went off sick with stress.  Whilst on sick leave he raised a grievance in relation to the handling of the whole process. This was not upheld by the school.

The school discovered that after Mr Williams was suspended he downloaded numerous documents from the school, breaching their data protection policy and therefore decided to re-suspend him and launch a second investigation. One document had been shared between Mr Williams and his fellow teacher Mrs Sydenham; who was also the school’s trade union representative.

The school commenced disciplinary proceedings against both Mr Williams and Mrs Sydenham. When Mr Williams told the school he wished to speak to Mrs Sydenham, the school refused his request. Mr Williams then resigned, citing the reason as the refusal to allow him to contact Mrs Sydenham, his union representative, and the last straw.

Mr Willams brought claims in the Tribunal, including for unfair constructive dismissal.

The Tribunal was highly critical of the school but decided that Mr Williams’ claim for constructive unfair dismissal must fail because the “last straw” (refusal to allow him to contact Mrs Sydenham) was not unreasonable given the ongoing disciplinary investigation and, therefore, was ‘innocuous’ or trivial. Mr Williams appealed.

The EAT allowed the appeal. It decided that, “so long as there has been conduct which amounts to a fundamental breach, the breach has not been affirmed, 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.”

The EAT held that the Tribunal had wrongly assumed that the last event in time, the refusal to allow Mr Williams to contact his union representative, was the last straw. They therefore failed to consider whether the earlier conduct itself established a fundamental breach, which had not been affirmed, and which also subsequently contributed to the decision to resign.

Implications: The case provides useful guidance around the scope of the “last straw” doctrine and acts as a reminder to employers that despite an employee relying on an innocuous triggering event, constructive dismissal may be established. This will depend on prior conduct which contributed to the employee’s decision to resign, provided the employee has not affirmed any breach of the implied term of trust and confidence.