It is an implied term of any employment contract that an employer should not act in a way that breaches the trust and confidence which an employee can expect from them. A serious breach of an implied contractual term or the ‘last straw’ in a series of less serious actions which cumulatively undermine the employee’s trust and confidence will amount to a repudiatory breach of the employment contract. It would normally justify the employee in terminating the contract and claiming constructive dismissal.
It was established in Omilaju v Waltham Forest London Borough Council that the last straw, which allows an employee to resign and claim constructive dismissal, need not necessarily be a breach of contract. It could be a relatively minor act. However, to be successfully relied on by the employee the last straw has to be the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract of employment by the employer. It has also to contribute, however slightly, to the breach of the implied term of trust and confidence. In addition, an action on the part of the employer that can be objectively judged to be entirely innocuous cannot be a last straw, even if the employee genuinely but mistakenly interprets the act as being hurtful and destructive of the trust and confidence in his or her employer.
In Wishaw and District Housing Association v Moncrieff, Mr Moncrieff was told that there were 13 areas of concern regarding the quality of his work as a Property Services Officer and that he would therefore be asked to attend a formal disciplinary interview. He considered these allegations unfair and in some cases untrue. Receipt of the notes of this meeting against a background of family problems caused him to suffer ill health and he was unable to work.
Mr Moncrieff remained off work on the advice of his GP. However, the Chief Executive of the Housing Association was sceptical that his illness was in any way due to domestic problems. When referring Mr Moncrieff to the Occupational Health department she stated that the family issues cited as the reason for his depression, which included his brother’s attempted suicide, were well known in the office because he had talked openly about them and his brother was now back at work. Mr Moncrieff was upset by this and claimed that someone had lied to her about it.
Over the ensuing months, the relationship between Mr Moncrieff and his employer deteriorated to the point where they were only corresponding via their respective solicitors. Eventually, Mr Moncrieff resigned and brought a claim of constructive unfair dismissal, using the last straw argument, and the Employment Tribunal (ET) upheld his claim. The Housing Association appealed and successfully overturned this decision.
The Employment Appeal Tribunal (EAT) held that in last straw cases, the ET must first identify the last straw act. It must then consider whether, assessing that act objectively, it is capable of contributing to a series of earlier acts so as to amount cumulatively to a breach of the implied term of trust and confidence. If the ET concludes that the act does have that potential, then it is required to consider the other acts in the series and ask whether, looked at together, all the acts, including the last straw, amount to a breach of the implied contract term. If, however, the ET concludes that the final act does not have the characteristics of a last straw, then it need not examine earlier events.
In this case, the EAT found that it was impossible to determine what the ET’s finding was regarding what exactly constituted the last straw or, indeed, whether the correct approach had been taken. For that reason alone, the ET’s judgment could not stand and Mr Moncrieff’s claim of unfair constructive dismissal was bound to fail.
Furthermore, when the EAT examined the correspondence between the parties, in its view there were only two letters that were possible candidates and neither one, when viewed objectively, could be regarded as evidence of a last straw.