EAT UNFAIR DISMISSAL
Constructive dismissal
Compensation
Last straw constructive unfair dismissal. Last straw; employer’s failure to deal properly with her grievance – Constructive dismissal made out (see Omilaju); compare Fairbrother [2007] IRLR 462.
Remedy – whether loss of earnings recoverable where ill-health begins prior to EDT in constructive dismissal case based on breach of implied term of trust and confidence by employer. Eastwood considered.
Peter Clark J set out the principles derived from Omilaju: ‘(1) the final straw act need not be of the same quality as the previous acts relied on as cumulatively amounting to a breach of the implied term of trust and confidence, but it must, when taken in conjunction with the earlier acts, contribute something to that breach and be more than utterly trivial.
(2) Where the employee, following a series of acts which amount to a breach of the term, does not accept the breach but continues in the employment, thus affirming the contract, he cannot subsequently rely on the earlier acts if the final straw is entirely innocuous.
(3) The final straw, viewed alone, need not be unreasonable or blameworthy conduct on the part of the employer. It need not itself amount to a breach of contract. However, it will be an unusual case where the ‘final straw’ consists of conduct which viewed objectively as reasonable and justifiable satisfies the final straw test.
(4) An entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely (and subjectively) but mistakenly interprets the employer’s act as destructive of the necessary trust and confidence.’
Peter Clark J
[2007] UKEAT 0111 – 07 – 1306, UKEAT/0111/07/RN
Bailii, EATn
England and Wales
Citing:
Cited – Abbey National Plc v Fairbrother EAT 12-Jan-2007
EAT Unfair Dismissal
Disability discrimination
The Tribunal had found a dismissal to be unfair because of flaws in a grievance procedure, following which the Claimant had resigned. They also found . .
Cited – London Borough of Waltham Forest v Omilaju CA 11-Nov-2004
Final Straw Act – Non-Trivial
The claimant had been involved in protracted disputes with the respondent. The respondent appealed a finding of constructive dismissal and victimisation. He had attended a tribunal hearing and the employer had refused to pay his salary whilst he was . .
Cited – J Sainsbury Ltd v Hitt; Orse Sainsburys Supermarkets Limited v Hitt CA 18-Oct-2002
Reasobaleness of Investigation Judged Objectively
The employer appealed against a decision that it had unfairly dismissed the respondent. The majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee’s alleged misconduct . .
Cited by:
Appeal from – GAB Robins (UK) Ltd v Triggs CA 30-Jan-2008
The claimant had been awarded damages for unfair constructive dismissal. The employer appealed an award of damages for the period prior to the acceptance by the employee of the repudiatory breach.
Held: Where a claimant’s losses arose before . .
Cited – Claridge v Daler Rowney Ltd EAT 4-Jul-2008
EAT UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal held the employee had not been constructively dismissed. One of the complaints related to defects in the handling of the grievance . .
Cited – Muschett v Parkwood Healthcare EAT 16-Mar-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal did not approach the question of constructive unfair dismissal in a last straw case by reference to the steps in Omilaju. To take an . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.253446