253: Constructive dismissal claim could succeed even though the ‘last straw’ was trivial

Constructive dismissal arises where an employee resigns in response to a fundamental breach of contract by their employer. Under the ‘last straw’ doctrine, an employee can resign in response to the last in a series of breaches of contract by their employer which, taken cumulatively, amount to a breach of the implied term of trust and confidence. Usually the last straw will be sufficiently serious to justify the employee’s immediate resignation. However, in Williams v Alderman Davies Church in Wales Primary School, the EAT has confirmed that an employee can still succeed in a constructive dismissal claim if this ‘last straw’ is trivial and not in itself a breach of contract.

Mr Williams was employed as a primary school teacher. He resigned after a long and complicated series of events which included his suspension due to an alleged child protection matter in April 2015 and disciplinary proceedings for an alleged breach of the school’s data protection policy in February 2016. Part of the data protection concern related to Mr Williams sharing a document with his colleague, Mrs Sydenham, who was also the school’s trade union representative. In June 2016, Mr Williams resigned, after complaining about various procedural irregularities and asserting that he had lost all faith that he would be treated properly. He stated that the last straw was learning that Mrs Sydenham had been instructed not to contact him.

Mr Williams brought various claims in the Employment Tribunal, including a claim of constructive dismissal. The Tribunal was highly critical of the school’s actions and procedures but concluded that he had not been constructively dismissed because preventing contact with Mrs Sydenham as part of the school’s investigation was entirely innocuous and reasonable, given the ongoing disciplinary proceedings. This meant that Mr Williams could not rely on this as the last straw entitling him to resign.

The EAT disagreed with this analysis and upheld Mr Williams’ appeal. It was wrong to reject a constructive dismissal claim simply by looking at the alleged ‘last straw’ and concluding that it was not of itself a breach of contract. In this situation, constructive dismissal can arise where the employer’s previous course of conduct was serious enough to amount to a fundamental breach as long as the employee has not affirmed the breach and has resigned at least partly in response to it. Regardless of the ‘last straw’, the school’s handling of the disciplinary and grievance process had been a fundamental breach which had subsequently contributed to Mr Williams’ decision to resign, and he had not affirmed this breach. The EAT therefore substituted a finding of constructive dismissal.

This case illustrates that constructive dismissal claims can be factually and legally complex. It is also an important reminder that employees may succeed in a constructive dismissal claim where there has been an earlier fundamental breach of contract even if the last straw that finally triggers their resignation seems trivial.