John Craig v Abellio Limited

The Employment Appeal Tribunal allowed the claimant's appeal against the Employment Tribunal's dismissal of his constructive unfair dismissal claim. The EAT held that the Tribunal failed to direct itself on and apply the legal principles governing the "last straw" doctrine (as explained in Omilaju and Kaur) and failed to engage properly with the claimant's factual case about a series of payment and grievance-related errors. The Tribunal had found that a grievance appeal had decided the pay dispute in the claimant's favour and that the employer's failure to make the back payment on the promised date was a mistake, not a repudiatory breach; the EAT concluded the Tribunal did not explain why earlier adverse findings did not bear on the last-straw analysis. Section 95 of the Employment Rights Act 1996 and authorities on constructive dismissal and cumulative breaches were central to the decision. The claim was remitted for rehearing to a newly constituted Employment Tribunal.

Background and parties: The claimant was a bus driver employed by the respondent from July 2014. He resigned on 20 July 2019 and brought a claim for constructive unfair dismissal, alleging a long history of incorrect payments and mishandling of complaints, culminating in the respondent's failure to make an agreed back payment of sick pay by 19 July 2019. The Employment Tribunal (London South, Employment Judge Fowell) dismissed the constructive dismissal claim in a reserved decision sent to the parties on 6 November 2020. The claimant appealed to the EAT, which heard the appeal on 10 September 2021.

Nature of the claim / relief sought: A claim for constructive unfair dismissal. Relief sought: Not stated in the judgment.

Issues framed:

• Whether the employer's conduct (including the late payment of back pay and a history of incorrect payments and grievance mishandling) amounted to a repudiatory breach of contract or a cumulative "last straw" breach.
• Whether the Tribunal applied the correct objective test for repudiatory breach rather than impermissibly focusing on the employer's subjective intention.
• Whether the use of grievance procedures and a grievance appeal decision in the claimant's favour meant there had been no fundamental breach.

Tribunal findings: The Employment Tribunal found confusion and errors in the respondent's payroll and working-hours records, recorded that an appeal found in the claimant's favour and that £6,144 was payable and would be paid on 19 July, but that payment was not made that day because payroll "spiked" the payment. The Tribunal concluded the non-payment on 19 July was a mistake, not a repudiatory breach, and that the grievance outcome redressed the dispute.

EAT reasoning and result: The EAT summarised the relevant law on constructive dismissal, the implied term of trust and confidence and the "last straw" doctrine (relying on Western Excavating, Omilaju, Kaur and related authorities). It held the Tribunal erred in law by not directing itself on the last-straw principles and by failing to engage with or explain how its factual findings bore on the claimant's cumulative-breach case. The EAT found insufficient reasoning to show the Tribunal had objectively considered whether a reasonable person in the claimant's position could view the 19 July event as the last straw in a course of mistreatment. The EAT allowed the appeal and remitted the constructive dismissal claim for rehearing before a newly constituted tribunal.

Procedural path: Employment Tribunal (hearing 26 October 2020; reserved decision 6 November 2020) -> Employment Appeal Tribunal (hearing 10 September 2021) resulting in allowance and remission.

Appeal allowed. The EAT held that the Employment Tribunal had erred in failing to direct itself on the legal principles of the "last straw" doctrine and in failing to engage with and explain how its factual findings bore on the claimant's cumulative-breach case. Because the Tribunal did not make necessary findings or explain why earlier adverse findings did not affect the last-straw analysis, the matter was remitted for rehearing before a newly constituted Employment Tribunal.

Appeal from the Employment Tribunal (London South, Employment Judge Fowell) following a one-day hearing on 26 October 2020 and a reserved decision sent on 6 November 2020. The appeal was heard by the Employment Appeal Tribunal on 10 September 2021, which allowed the appeal and remitted the constructive dismissal claim for rehearing. Neutral citation for the EAT decision: [2022] EAT 43.