Local Government - June 2009
The last straw
How a Tribunal must approach a “last straw” constructive
unfair dismissal claim? (EAT decision of Wishaw & District
Housing Association v Moncrieff)
Background
Mr. Moncrieff
was employed as a Property Services Officer by the
Respondent. Mr. Moncrieff was informed by his employer that
there were thirteen areas of concern regarding the quality of his
performance, at a time when he had been going through various
personal and family problems. He was subsequently absent,
citing stress. The employer was sceptical about whether or
not Mr. Moncrieff’s sickness absence was genuine and he was
referred to Occupational Health.
A trail of correspondence ensued between Mr.
Moncrieff and his employer. Communication became difficult and Mr.
Moncrieff instructed solicitors who corresponded on his
behalf. The option of ACAS mediation, as a way of resolving
the issues, was explored but instead, Mr. Moncrieff
resigned.
Both parties agreed that this was a “last
straw” case and the Employment Tribunal (ET) scrutinised the
correspondence between the employer and Mr. Moncrieff’s solicitors,
before his resignation. It considered that the employer’s
treatment of him was unfair and caused his resignation and,
therefore, upheld Mr. Moncrieff’s claim.
EAT Decision
Lady Smith
stated that the ET was not entirely clear on what was the “last
straw” that caused Mr. Moncrieff to resign and she got the
impression that the ET had overlooked the need to identify what
event constituted the “last straw”.
The EAT held that neither of the potential
“candidates” for a last straw (two letters from the employer) was
capable of contributing to a series of earlier acts so as to
amount, cumulatively, to a breach of the implied duty of trust and
confidence, entitling the Claimant to resign. The two letters
were a letter from the Respondent threatening to consider the
possible dismissal of the Claimant because of his long term
absence; and a letter from the Respondent's representative offering
to deal with his grievance internally when he had previously been
offered external mediation.
The appeal by the Housing Association was
therefore allowed and the claim by Mr. Moncrieff was
dismissed.
Lady Smith noted the approach that the ET
should have taken when determining this case:
1. identify the
“last straw” act;
2. objectively
assess whether the act was capable of contributing to a series of
earlier acts so as to amount, cumulatively, to a breach of the
implied duty of trust and confidence; and
3. if it does
have capability, then consideration of the other acts in the series
of acts and ask whether, looked at together, all the acts including
the “last straw” amounted to a breach of the implied term.
Comment
This case offers
useful guidance to employers and practitioners on how Employment
Tribunals will consider “last straw” constructive dismissal
claims.
For further information about Weightmans or to
discuss any of the issues in this update please contact Tim Lang -
Partner and Head of Employment practice area at Weightmans on 0121
200 8111 or at tim.lang@weightmans.com
Weightmans LLP