Under the doctrine of “last straw”, claimants can rely on a final act in a series of contractual breaches by the employer to claim constructive dismissal, even if they had affirmed the earlier acts. In Craig v Abellio Ltd, the EAT held that the “last straw” act relied on by Mr Craig formed part of a consistent pattern of mistreatment, when viewed objectively from his perspective.
Mr Craig, who had worked for Abellio as a bus driver since 2014, resigned on 20 July 2019 following a series of problems with his pay. This included payments which he did not receive, as well as a demand for an overpayment made by the company of £2,000 which was later found to be incorrect.
After failing to receive the correct sick pay, he took out a grievance which was initially rejected but overturned on appeal. It then turned out that the company actually owed Mr Craig over £6,000 which it promised to pay him on 19 July. When the payment was not made, he resigned and claimed constructive dismissal on the basis that this was the “last straw” following a “consistent pattern of emotional abuse and calculated deceit”.
The question for the tribunal was whether Abellio, by failing to pay the arrears on the due date, was guilty of conduct which went to the root of the contract or showed it no longer intended to abide by the essential terms of the contract.
The judge concluded that it did not, as the failure to pay on 19 July was the result of a simple mistake by someone in payroll. Although the payment did not happen that day, it was made shortly afterwards. The judge also pointed to the fact that Mr Craig had a letter from the director specifying the sum due to him and a payslip made out in his favour. As such, he concluded that “there cannot have been any doubt that the money would be paid, even if there was a last-minute hitch of some sort”.
Mr Craig appealed, arguing that the tribunal had not taken into account his employer’s conduct over a sustained period of time; it had focused on the company’s intentions rather than the effect on him; and finally it had wrongly assumed that it was not possible to have a fundamental breach of contract in circumstances where the grievance procedure had been engaged.
Allowing the appeal, the EAT held that the tribunal did not direct itself properly with regard to the legal principles applicable to a “last straw” constructive dismissal and failed to engage with Mr Craig’s factual case on “last straw”.
In addition, the tribunal judge had misunderstood the essence of Mr Craig’s case. Namely, that the company was guilty of a litany of errors in relation to his pay and hours and had failed to properly engage with him when he raised complaints and queries.
When the company then promised – but failed – to pay him the money that was owed to him on 19 July, Mr Craig was entitled to conclude that he was being mistreated again. In effect, the tribunal had not considered whether or not the events of 19 July, seen objectively by someone in Mr Craig’s shoes, formed part of a pattern of mistreatment.
Instead, it regarded the history of payment problems and complaints simply as something that had been remedied by the grievance. It failed to make findings on a number of complaints raised by Mr Craig and, where it did make factual findings, it failed to explain how the facts fitted into its very brief conclusion on the “last straw” case.
The EAT therefore remitted the claim to a new employment tribunal for reconsideration.