Chadwick v Sainsbury's Supermarkets Ltd

In a constructive-dismissal claim, the alleged final act must be assessed objectively under the last straw doctrine. A tribunal must determine whether the act was entirely innocuous or was capable of contributing, however slightly, to an earlier cumulative breach of the implied term of trust and confidence.

A threat of disciplinary action, if made by a manager who had not been instructed to make it, was capable of being a final straw. It was therefore an error to strike out the claim on the basis that the act was entirely innocuous, particularly where there was an alleged history of adverse treatment. The interests-of-justice power to reconsider a judgment under Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 should not be narrowly defined in exceptional circumstances.

The claimant, a long-serving supermarket employee, resigned and claimed constructive unfair dismissal. He alleged that his direct manager had singled him out over time and that a meeting on 19 December 2015, at which he was allegedly threatened with disciplinary action over outstanding appraisals, was the final straw.

After hearing the claimant's evidence but before hearing the respondent's case, the Employment Tribunal raised and determined of its own motion that the claim should be struck out. On reconsideration, it admitted the claimant's further explanation but confirmed the strike-out. The claimant appealed the reconsideration judgment. The respondent cross-appealed against the decision to reconsider.

The central issue was whether the alleged disciplinary threat could objectively amount to a final straw and whether the Tribunal had lawfully exercised its reconsideration power.

1. Appeal allowed; cross-appeal dismissed. The Employment Tribunal did reconsider its original strike-out decision. Its decision to do so disclosed no error of law. The claimant had been unrepresented and taken by surprise when, on the third day of the hearing, the Tribunal exceptionally raised strike-out of its own motion. His subsequent explanation corrected a misunderstanding of his answers; it was not an attempt to introduce new evidence. In those circumstances, the interests-of-justice test in Rule 70 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 was not to be narrowly defined.

2. There was no dispute as to the objective last straw test in Omilaju v Waltham Forest London Borough Council, [2004] EWCA Civ 1493. The decisive question was whether the events of 19 December 2015 were entirely innocuous.

3. The Tribunal erred by treating the case as turning only on the identity of the manager who conducted the meeting. It failed to consider whether that manager had made a threat of disciplinary proceedings which he had not been instructed to make. If established, that alleged threat, in the context of the alleged earlier conduct, was capable of contributing to a breach of trust and confidence. It thus fell within the proper territory of a permissible final straw and could not properly be characterised, at the strike-out stage, as entirely innocuous.

4. The high threshold for perversity was met on these facts. Once it was open to the claimant to advance the last-straw case, the original strike-out had to be revoked. Applying Jafri v Lincoln College, [2014] EWCA Civ 449, there was only one permissible course. The original judgment was revoked and the claim was directed to be reheard from the start. The Regional Employment Judge was to determine the constitution of the rehearing Tribunal.

• Employment Appeal Tribunal: Allowed the claimant's appeal against the reconsideration judgment, dismissed the respondent's cross-appeal, revoked the original strike-out, and directed a rehearing from the start: [2018] UKEAT 0052_18_2012.
• Employment Tribunal, Manchester: Struck out the constructive unfair-dismissal claim after the claimant's evidence. On reconsideration, it admitted further material but confirmed the strike-out. The reconsideration judgment was sent to the parties on 3 May 2017.