"Last straw"

Case 2: The facts

Folu Omilaju worked as a housing officer. During his employment he lodged a number of complaints in the employment tribunal against his employer, all of which were dismissed.

Omilju resigned after his employer failed to pay him for time off that he had taken to attend an employment tribunal; he said this was the "last straw" in a series of events, and brought a claim for unfair constructive dismissal and other claims.

An employment tribunal dismissed Omilaju's claim for constructive dismissal, on the basis that his employer's failure to pay him for the time off was reasonable and did not amount to a breach of contract.

The issue before the EAT was whether an employer's final act in a constructive dismissal case had to involve blameworthy or unreasonable conduct.

The ruling

The EAT stated that it was already established law that the final act did not itself have to constitute a breach of contract - the tribunal had to look at all the events to see whether they cumulatively amounted to a fundamental breach.

Its view was that it is also possible for there to be a constructive dismissal even where the employer's final act was considered reasonable by a tribunal, because the employee's perception of the employer's action must be taken into account. However, it gave leave for this point to go to the Court of Appeal.

Omilaju v LB Waltham Forest UKEAT/0941/03