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 absent. They said he had not requested leave to attend the hearing, and if he had made a request it would have been granted. The employee said this was ‘the final straw’ and that it justified his resignation and claim of constructive dismissal.
Held: The employer’s appeal succeeded. Although the final straw may be relatively insignificant, it must not be utterly trivial.
May LJ said: ‘an entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer. The test of whether the employee’s trust and confidence has been undermined is objective’ and ‘Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the ‘last straw’ which causes the employee to terminate a deteriorating relationship.’ However, taking an objective view of all the circumstances, the failure to pay was not a final straw, and the Tribunal could reach this decision without considering in detail the nature and effect of the earlier acts.

Lord Justice May, Lord Justice Dyson Lord Justice Wall
[2004] EWCA Civ 1493, Times 26-Nov-2004, [2005] ICR 481, [2005] IRLR 35, [2005] 1 All ER 75
England and Wales
Appeal fromOmilaju v London Borough of Waltham Forest EAT 31-Mar-2004
EAT Unfair Dismissal
Constructive Dismissal
A novel point on whether the ‘last straw’ in a constructive dismissal case has to involve at least some blameworthy or unreasonable conduct by the employer – . .
CitedWestern Excavating (ECC) Ltd v Sharp CA 1978
To succeed in a claim for constructive dismissal the plaintiff must establish a breach of contract by the defendant, that the breach was sufficiently serious to have justified the claimant resigning, or at least be the last in a series of events . .
CitedMalik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
CitedWoods v WM Car Services (Peterborough) Ltd EAT 1981
Any breach of the implied term of trust and confidence will amount to a repudiation of the contract, but in cases of constructive dismissal, an employee has no remedy even if his employer has behaved unfairly, unless it can be shown that the . .
See AlsoOmilaju v London Borough of Waltham Forest and others EAT 1-Dec-1999
EAT Procedural Issues – Employment Tribunal . .
See AlsoOmilaju v Waltham Forest and others EAT 23-Apr-1999
. .
See AlsoOmilaju v London Borough of Waltham Forest and others EAT 30-Apr-2003
. .

Cited by:
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(2) gave no reasons for finding a 3 year period for . .
CitedBarke v Seetec Business Technology Centre Ltd CA 16-May-2005
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Held: The words ‘disposing of’ in the section meant ‘dealing with conclusively’ rather than . .
CitedO’Kane v United Hospitals Trust FENI 30-Jun-2005
. .
CitedBarke v SEETEC Business Technology Centre Ltd EAT 13-Jan-2006
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(1) In deciding to reject the constructive unfair dismissal . .
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. .
CitedQuigley v University of St Andrews EAT 9-Aug-2006
EAT The claimant, a university lecturer, claimed that he had been unfairly constructively dismissed. The tribunal held that the university had acted reasonably throughout the period of his employment, that they . .
CitedGibson and others (T/A Blandford House Surgery) v Hughes EAT 13-Sep-2006
EAT Unfair Dismissal – Constructive dismissal
The Employment Tribunal erred in applying the last straw doctrine of constructive unfair dismissal when, on affirmation of the contract by the Claimant following . .
CitedRoyle v Greater Manchester Police Authority EAT 27-Sep-2006
The claimant appealed dismissal of her claim for constructive dismissal. The tribunal had decided that she had waived and could not rely upon several matters placed before it.
Held: ‘(1) Where the appeal is based on alleged failure by the . .
CitedBates v Liverpool City Council EAT 25-Jan-2007
EAT Unfair Dismissal – constructive dismissal
In a constructive dismissal claim based on a disciplinary sanction short of dismissal, the issue is whether the sanction was disproportionate. Although BHS v . .
CitedAnderson v Wesley Housing Association Ltd and Another NIIT 1-May-2007
. .
CitedGAB Robins (UK) Ltd v Triggs EAT 13-Jun-2007
Constructive dismissal
Last straw constructive unfair dismissal. Last straw; employer’s failure to deal properly with her grievance – Constructive dismissal . .
CitedRobson v Happy Days (1999) Ltd NIIT 17-Jul-2007
. .
CitedSecretary of State for Justice v Slee EAT 19-Jul-2007
EAT Unfair Dismissal – Constructive dismissal
Maternity Rights and Parental Leave – Sex discrimination
The Claimant was employed as a Magistrates’ Clerk and she brought successful claims to the . .
CitedMartin v Openwork Services Ltd NIIT 4-Oct-2007
. .
CitedGMB Trade Union v Brown EAT 16-Oct-2007
EAT Unfair Dismissal: Reason for dismissal including substantial other reason / Compensation
The employee claimed constructive unfair dismissal because the employers refused to modify their grievance . .
CitedBlack v Ballyrobert Ltd NIIT 21-Mar-2008
. .
CitedNigel Fryer Joinery Services Ltd and Another v Ian Firth Hardware Ltd ChD 23-Apr-2008
. .
CitedThornton Print Ltd v Morton EAT 8-Sep-2008
EAT UNFAIR DISMISSAL: Constructive dismissal
The Respondent committed a repudiatory breach of the Claimant’s contract of employment. . .
CitedClaridge 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 . .
CitedFazal v National Westminster Bank EAT 28-May-2008
EAT Jurisdictional Points – Extension of time: just and equitable
Sex Discrimination – Indirect
>Unfair Dismissal – Constructive dismissal

The Appellant claimed constructive unfair dismissal and . .
CitedDalzell v Department for Social Development NIIT 12-May-2008
The unanimous decision of the tribunal is as follows:-
(i) the claimant was not unfairly (constructively) dismissed by the respondent Department for Social Development;
(ii) the claimant was not unlawfully discriminated against by any of . .
CitedEdinburgh Council v Wood EAT 2-May-2008
EAT UNFAIR DISMISSAL: Constructive dismissal – Tribunal found two ‘stand alone’ material breaches, one in respect of penalty imposed for misconduct and one in respect of respondents’ response to claimant’s . .
CitedDiamond v Montgomery Distribution Ltd NIIT 29-Apr-2008
. .
CitedM Fergusson, R Fergusson v Shepherd Neame Brewery Ltd EAT 28-Apr-2005
EAT Claimants complained of constructive dismissal by reason of breach of the implied term of trust and confidence. The Employment Tribunal looked for a ‘continuous course of conduct’ – as constituting the breach . .
CitedThe Spirit Group Ltd v Bell EAT 30-Mar-2005
EAT Unfair Dismissal
The Employment Tribunal did not err when it held the Claimant was unfairly constructively dismissed. There was no break in the chain of events leading to the application of the last . .
CitedO’Shea v Coventry City Council EAT 11-Feb-2005
EAT Applicant resigned ahead of disciplinary hearing. He asserted constructive dismissal. Employment Tribunal held he resigned in expectation of good reference enabling him to take another job. On appeal he . .
CitedBunning v G T Bunning and Sons Limited CA 9-Feb-2005
Application for leave to appeal. Leave granted but claimant warned as to likelihood of success. . .
CitedDoherty v British Midland Airways Ltd EAT 7-Feb-2005
EAT Unfair Dismissal
Employment Tribunal made findings against the Applicant relating to malice and motive which were not the Respondent’s case and were not put to her. Lucas v Chichester Diocesan Housing . .
CitedGulf Offshore Guernsey Ltd v Struth EAT 7-Dec-2004
EAT Contract of Employment – Mutual trust and confidence. The ET was entitled to find on the facts that the Claimant was constructively dismissed, although he had misunderstood what was said to him by his ship’s . .
CitedMuschett 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.

Discrimination, Employment

Leading Case

Updated: 01 November 2021; Ref: scu.219330