Tribunal erred over ‘last straw’ dismissal claim

An employment tribunal was wrong in failing to consider whether there had been a “last straw” entitling the claimant to resign and claim constructive dismissal, the Employment Appeal Tribunal (EAT) has found in the case of Craig v Abellio Ltd [2022] EAT 43.

Mr Craig was a bus driver and, over a period of time, experienced numerous problems with his hours and pay. When he went off sick, his employer also paid the wrong amount of sick pay and then failed to deal with his grievance.

An internal grievance procedure and appeal resulted in an agreement for Abellio to pay him £6,000 in back pay by a certain date.

The payment was not made on time, causing Craig to resign and claim constructive dismissal, relying on this failure as the “last straw” in a pattern of treatment.

The tribunal decided that, by agreeing to pay the back pay, the employer had addressed the problem through the grievance.

The missed payment was simply a mistake, and these failures did not amount to a repudiatory breach of contract , or a “last straw” that entitled Craig to resign.

But the EAT found that the employment tribunal had made an error in law: it had not properly considered the legal principles involved in a “last straw” constructive dismissal claim and had failed to engage with Craig’s factual case.

The EAT upheld the appeal and sent it to a fresh tribunal to consider.