Failure to address employee complaints led to ‘last straw’ in constructive dismissal

“Constructive dismissal” is something periodically referred to by disgruntled employees, and generally disregarded as a realistic threat by employers. To claim constructive dismissal an employee has to resign, and establish that they have done so in response to a repudiatory (fundamental) breach of contract, as a result of the employer’s conduct. It is up to the employee to prove that there has been a breach of contract, and this is a high hurdle. An employee would not be lightly advised to resign and to bring legal proceedings on this basis.

Nonetheless, there are numerous cases in which employees have successfully established that they have been constructively dismissed. The employer could either have been in breach of an express contractual term, or an implied contractual term – commonly the implied term of trust and confidence. The breach could be actual or anticipatory (i.e. relating to something which the employer will do in the future). It can consist of a one-off act, or a continuing course of conduct over a period of time which culminates in a ‘last straw’.

The “last straw” doctrine is the one which can be the most problematic for employers. In the recent case of Marshall v McPherson Limited, the Employment Appeal Tribunal (EAT) considered what can amount to a “last straw” and whether this needs in and of itself to be a serious breach on its own. We consider this case in further detail here.

What are the facts of Marshall v McPherson?

McPherson Limited is a large haulage company. One of their tasks was to remove draff (spent grain) from local whisky distilleries. Mr Marshall is an experienced HGV driver.

In 2017, two incidents at work occurred involving Mr Marshall. The first was unintentional exposure to caustic steam. The second was a near miss with power lines when Mr Marshall was tipping at an unfamiliar property in the dark. This incident was reported by him at the time, and he highlighted the lack of risk assessment.

In 2023, Mr Marshall was working night shifts, unloading boxes delivered during his shifts and having empty boxes ready for use by others. A new system was introduced which moved more speedily, and Mr Marshall felt under pressure, finding it difficult to take breaks and complete his duties.

Mr Marshall manipulated the tachograph in his lorry to make it seem like he was taking scheduled breaks, he often had difficulty completing all the tipping and told his line manager he struggled with taking breaks. He was told to do what he could and ‘crack on’. This was not recorded as an issue by management.

Without prior warning, on one night shift another driver was instructed to accompany Mr Marshall and check if the draff was being properly tipped, then report back. Mr Marshall was annoyed by this and decided to leave his position. He communicated his concerns to his employer’s Operations Manager and was assigned a local driving role. He declined this transfer, however, as he felt his complaints were being ignored. Mr Marshall ultimately resigned and stated that in his view, this was constructive dismissal.

Employment Tribunal findings

Mr Marshall brought a claim for constructive unfair dismissal against McPherson Limited, which was dismissed by the Employment Tribunal (ET) in June 2024.

The ET concluded that the ‘final straw’ in this case could either be the employer checking up on Mr Marshall, or in the alternative, the delay in investigating the 2017 incidents. However, in both scenarios, the ET considered that neither were repudiatory acts on their own and therefore could not revive the earlier repudiatory acts that occurred in 2017. They accordingly dismissed the claim.

Employment Appeal Tribunal

Mr Marshall appealed. The EAT decided that the approach taken by the ET was incorrect and the ET had misdirected itself and had failed to consider whether all of the incidents cumulatively amounted to a fundamental breach of the implied term of trust and confidence. The EAT concluded that they did, and Mr Marshall had been constructively dismissed.

Key lessons for employers

• Employers need to take employee complaints seriously. Employers should respond promptly and meaningfully to employee grievances (whether or not they are described as such). Concerns about health, safety, or dangerous working conditions should be taken particularly seriously. Aside from the risk of personal injury claims if these are not addressed, these are the cases in which it will be easy for an ET to find that the employer has acted in breach of contract.
• Employers should understand the cumulative effect of actions/inaction. In the McPherson case the ET and EAT looked at incidents occurring in 2017 and in 2023, seemingly with no other significant events happening in the interim years. However, the employer’s failure to investigate the 2017 incidents fed into Mr Marshall’s decision to leave his role in 2023. Had McPherson satisfactorily investigated the 2017 reports, it is likely that there would have been no series of events resulting in a ‘final straw’. Similarly, had Mr Marshall’s reports around the difficulties he had with taking breaks and ensuring the workload was completed on time been taken seriously, he may not have felt the need to refuse the transfer or to resign from his role. Employer’s should understand that even if events in isolation seem minor, a pattern or build-up of incidents can amount to a repudiatory breach of contract.
• Train managers to recognise and to escalate concerns. Often problems such as those that arose in the McPherson case come about because managers ignore or do not recognise the seriousness of concerns being raised by employees. Ensuring that managers have been trained to identify issues promptly and to address them properly, in accordance with the employer’s procedures, is a good step.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further advice or information about management training which we offer.