Error in tribunal’s ‘last straw’ analysis leads to successful appeal in constructive dismissal case

Background

In Marshall v McPherson Ltd, Mr Marshall was an experienced HGV driver working night shifts for McPherson Ltd. His role involved operating alone and unloading deliveries at a processing plant throughout the night. Following operational changes, he began experiencing difficulty taking rest breaks and raised this with his line manager. No action was taken.

Without warning, the company later sent another driver to accompany him during a shift and report back on his performance. Mr Marshall considered this undermining and, combined with earlier concerns about working conditions and unresolved safety issues, he resigned. He brought a claim for constructive unfair dismissal, alleging a breakdown in trust and confidence.

The employment tribunal dismissed the claim. It accepted that earlier events might have raised issues but concluded there had been no fundamental breach of contract and no “last straw” to justify Mr Marshall’s resignation. 

The EAT’s decision

The Employment Appeal Tribunal overturned the decision, finding that the tribunal had misstated and misapplied the law when analysing the final events leading to resignation. The tribunal had wrongly concluded that the final act must itself be serious enough to amount to a breach of contract in order to support the claim.

The EAT confirmed that a resignation can still amount to constructive dismissal even if the final event was relatively minor, provided it contributes to a wider breakdown in trust and confidence when taken cumulatively with earlier conduct.

Because of this error, the case will now be reheard by a freshly constituted employment tribunal. The EAT found that the mistake was fundamental and that the findings on whether there had been a breach of contract could not be safely relied on without re-examination. 

Learning points for employers

This case highlights the importance of dealing constructively with employee concerns, particularly where these relate to safety, wellbeing, or workload pressures. Dismissing or downplaying issues raised by long-serving staff can carry risks, especially when coupled with further actions that undermine trust, such as covert monitoring or failing to respond appropriately to past incidents.

Employers should also be mindful that a pattern of behaviour, rather than a single dramatic event, can be enough to trigger a claim for constructive dismissal. Even where earlier events have been tolerated by the employee, a subsequent incident may be seen as the final straw that tips the balance. It is therefore important to consider the cumulative effect of management decisions and workplace culture over time, not just individual actions in isolation.

For more information or advice, please contact Rory Jutton in our Employment team.