James Marshall v McPherson Limited

The Employment Appeal Tribunal allowed the claimant's appeal against the Employment Tribunal's dismissal of a claim for constructive unfair dismissal under section 95(1)(c) ERA. The EAT held that the ET had correctly identified the governing authorities (including Malik, Omilaju and Kaur) but had misdirected itself at a critical stage by applying an incorrect formulation of the "last straw" principle. In particular, the ET treated a non-repudiatory act as incapable of contributing to earlier acts, contrary to the correct cumulative approach. Because that legal error was material to the outcome and left open how the ET would have decided the matter if properly directed, the EAT remitted the claim to a freshly constituted Tribunal for rehearing.

Background and procedural history:

• The claimant, an HGV driver, brought a claim for constructive unfair dismissal under section 95(1)(c) of the Employment Rights Act 1996 following operational changes, pressures at a biomass plant and historical safety-related incidents. The Employment Tribunal dismissed the claim by judgment dated 25 June 2024. The claimant appealed to the EAT, which granted permission to proceed on grounds alleging legal misdirection on constructive dismissal, perversity and failure to take into account or exclusion of relevant matters. The appeal was considered under Rule 3(7).

Nature of the claim and relief sought: The claimant sought a declaration that he had been constructively unfairly dismissed and associated remedies; on appeal he sought reversal of the ET's dismissal on the basis of errors of law and perversity.

Issues framed by the court:

• Whether the ET misdirected itself in law in its approach to constructive dismissal and the "last straw" analysis (principally in the light of Malik, Omilaju and Kaur);
• whether the ET's findings that there was no repudiatory breach were perverse; and
• whether the ET took into account irrelevant matters or omitted relevant matters.

Court's reasoning: The EAT accepted that the ET had accurately set out the key authorities but identified materially misleading language in paragraphs 70–71 of the ET judgment which treated a non-repudiatory final act as incapable of reviving earlier breaches. That approach conflicted with Omilaju and the cumulative test explained in Kaur. The EAT concluded that the legal error was not merely clumsy drafting but went to the heart of the ET's evaluation of whether earlier incidents and later acts cumulatively amounted to a repudiatory breach of the implied term of trust and confidence. Because it was an open question how the ET would have decided the matter if correctly directed, the EAT remitted the case for rehearing before a freshly constituted Tribunal rather than substituting a decision on the merits.

The appeal is allowed. The Employment Tribunal misdirected itself on the proper "last straw" and cumulative approach to constructive dismissal (principally as explained in Omilaju and Kaur). That misdirection was material to the outcome and, as it was not possible to conclude that the correct conclusion would inevitably have followed, the matter is remitted to a freshly constituted Employment Tribunal for rehearing.

The Employment Tribunal dismissed the claimant's constructive dismissal claim by judgment dated 25 June 2024. The claimant appealed to the Employment Appeal Tribunal; permission was granted under Rule 3(7) to proceed on grounds alleging legal misdirection and perversity. The EAT ([2025] EAT 100) allowed the appeal and remitted the matter to a fresh Tribunal.