The straw that breaks the contract’s back

The concept of the ‘last straw’ in relation to constructive dismissal claims featured in the case of Williams v Governing Body of Alderman Davies Church in Wales Primary School, where a decision by an Employment Tribunal (ET) was subsequently overturned by an Employment Appeal Tribunal (EAT).

The case centred on a primary school teacher, Mr Williams, suspended by the school after allegedly manhandling a child. When Mr Williams subsequently resigned nearly a year later – the ‘last straw’ (final act by the employer ultimately leading to the employee’s resignation) was discovering that the school had refused to let a fellow teacher contact him.

However, the ET found Mr Williams’ ‘last straw’ to be ‘innocuous and reasonable’, so could not have contributed to the school’s previous actions, which he claimed had breached his employment contract. He appealed, and the EAT held that where an employer’s conduct together constitutes a
fundamental breach of contract, a claim of constructive dismissal against them can succeed. This is the case even if their more recent conduct (in this case, Mr Williams’s ‘last straw’) does not breach the implied term of trust and confidence but does lead the employee to resign.

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

  • 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;
  • The employee must resign in response to that breach; and
  • 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.

The EAT found that Mr Williams had resigned in response to a course of mistreatment over a period of time, and not the single “innocuous” act, as the ET had found.

Our opinion

This is an important reminder for employers that even a seemingly innocent and reasonable act on their part could tip the scales towards a constructive dismissal case where there has been an earlier fundamental breach of contract. The last straw does not necessarily have to contribute to a breach of the implied term of trust and confidence.