John Craig v Abellio Limited

In a constructive-dismissal claim based on a last straw, the tribunal must identify and assess the employee’s pleaded course of conduct cumulatively. A final incident need not itself be repudiatory, or especially weighty, but it must be viewed objectively in its factual context and must not be utterly trivial.

A grievance outcome may be relevant to trust and confidence, but it does not remove the need to decide whether earlier conduct, including failures to pay sums contractually due, amounted to a breach. A mistaken view of contractual entitlement does not itself necessarily repudiate the contract. Acting on that view by withholding contractual pay may nevertheless be a breach.

The claimant, a bus driver, resigned after the respondent failed to pay by the stated date more than £6,000 in sick-pay arrears awarded on his grievance appeal. He alleged that the delayed payment was the last straw in a longer history of errors concerning his hours and pay, unfulfilled payment promises, and mishandled complaints.

The Employment Tribunal dismissed his constructive unfair dismissal claim. It held that the payment delay was an administrative mistake, was not repudiatory in itself, and did not alter the position when viewed as a last straw. The claimant appealed on the basis that the Tribunal had failed to apply the last-straw doctrine and to engage with his pleaded factual case.

1. Appeal allowed. The Employment Tribunal erred in law by failing to engage with the legal principles governing a last-straw constructive dismissal, to make adequate findings on the claimant’s pleaded complaints, and to apply those principles to the facts.

2. Under Omilaju, a repudiatory breach of the implied term of trust and confidence may arise from a cumulative series of acts. The final act which prompts resignation need not itself be a breach, but it cannot be utterly trivial. Kaur confirms that a final act may either complete the cumulative repudiation or trigger acceptance of an earlier repudiation. The Tribunal did not demonstrate that it had applied those principles.

3. The claimant’s case was not merely a genuine dispute about the interpretation of sick-pay provisions. It alleged repeated pay and hours errors, unmet payment promises, and deficient handling of complaints. The Tribunal mischaracterised that case as essentially a history of sickness absence and a grievance process resolved in the claimant’s favour. It was required to assess whether the delayed payment on 19 July, viewed objectively and against that history, could form part of a pattern of mistreatment.

4. A genuine contractual dispute and willingness to use a grievance procedure may be relevant to the implied term of trust and confidence. They do not answer the separate question whether a sum due under an express contractual term was unpaid. The Tribunal also failed to consider that issue. Its objective direction on repudiatory breach was, however, legally correct; no separate error based on a subjective test was established.

5. The constructive-dismissal claim was remitted for a complete rehearing before a newly constituted Employment Tribunal. The factual allegations required a fundamental reconsideration.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the constructive unfair dismissal claim for rehearing before a newly constituted Employment Tribunal: [2022] EAT 43.
• Employment Tribunal, London South: Dismissed the claimant’s constructive unfair dismissal claim in reserved reasons sent to the parties on 6 November 2020.