James Marshall v McPherson Limited

In a constructive-dismissal claim based on a cumulative breach of the implied term of trust and confidence, the alleged final act need not itself be repudiatory, unreasonable or blameworthy. It need only contribute, however slightly, to the cumulative breach.

An Employment Tribunal must apply the later stages of the Kaur approach. Where the latest act is not independently repudiatory, it must decide whether that act formed part of a course of conduct which cumulatively breached the Malik term, and whether the employee resigned in response to that breach. A misstatement requiring the final act itself to be repudiatory is material where it prevents that cumulative assessment.

The claimant, an experienced HGV driver, claimed constructive unfair dismissal under section 95(1)(c) of the Employment Rights Act 1996. He relied on historic safety incidents, difficulties taking statutory breaks during demanding night work, and the respondent’s unannounced decision to send another driver to check his work.

The Employment Tribunal dismissed the claim in a judgment dated 25 June 2024. It held that neither the checking of the claimant’s work nor delay in an investigation was repudiatory and therefore neither could revive an earlier incident.

On appeal, the central issue was whether the Tribunal had correctly applied the law governing a cumulative breach and the alleged ‘last straw’, and, if not, whether the EAT could determine the claim or should remit it.

1. Appeal allowed. The Employment Tribunal’s statements of the governing law were initially correct, but its reasoning at paragraphs 70 and 71 applied a different and erroneous test. It treated the absence of a repudiatory final act as preventing that act from contributing to, or reviving, earlier conduct.

2. Under London Borough of Waltham Forrest v Omilaju, the final act in a series need not itself be unreasonable, blameworthy or repudiatory. The material question is whether it contributed, even slightly, to conduct which cumulatively amounted to a repudiatory breach of the implied term identified in Malik v BCCI SA.

3. The Tribunal had not reliably completed stages four and five of the five-stage approach in Kaur v Leeds Teaching Hospitals NHS Trust. In particular, it had not properly considered whether the latest act was part of a cumulative course of conduct amounting to a breach, or whether the claimant resigned in response to it. Its reasoning also did not permit a confident inference that it had considered affirmation.

4. The error was fundamental, rather than a merely clumsy expression. It went to the decisive issue and undermined the Tribunal’s finding that there was no final straw. The low threshold for a final act to contribute to a cumulative breach made the error material.

5. The separate perversity grounds did not independently succeed. The claimant had not shown that dismissal of the claim was a conclusion no reasonable Tribunal could reach. However, the points raised reinforced the conclusion that the Tribunal had not consistently applied the correct legal approach.

6. The claim was remitted for rehearing before a freshly constituted Tribunal. The EAT could not determine the outcome because it remained an open factual question how a correctly directed Tribunal would assess the alleged final act and the cumulative conduct. A fresh Tribunal was appropriate because reconsideration could require revisiting the relevant findings, not merely applying the correct law to undisputed facts.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the constructive-unfair-dismissal claim to a freshly constituted Employment Tribunal for rehearing: [2025] EAT 100.
• Employment Tribunal: Dismissed the claimant’s constructive-unfair-dismissal claim in a judgment dated 25 June 2024.