This week’s case concerns constructive dismissal and asks:

Can a final straw incident relate to a previously affirmed breach of the implied term of trust and confidence?

Pets at Home v McKenzie

The Claimant, Ms McKenzie, was an Assistant Manager at Pets At Home, the Respondent. At the Claimant’s store there were two Assistant Managers, a Deputy Manager and a Manager. The Claimant went on maternity leave and applied for a Deputy Manager position but was unsuccessful.

The Claimant was told she could not be fast-tracked into this role and it was her opinion that she was not fast tracked because she was on maternity leave as prior to this she believed she would be fast-tracked. The following year, again whilst on maternity leave, the Claimant applied for the Deputy Manager position but was once again unsuccessful.

A few months later, the Claimant learned that her fellow Assistant Manager, whom she had managed prior to his promotion, had recently become a Deputy Manager. In reality, the colleague had actually only passed an assessment and still had to have a trial period. The Claimant saw this as the final straw and resigned due to a breach of trust and confidence following maternity discrimination as a result of failing to fast-track her promotion.

The Claimant initiated ET proceedings, the Respondent argued that the Claimant had affirmed any breach by not resigning at the time. The ET held that discrimination of failing to be fast-tracked due to maternity leave was out of time. However, coupled with learning her colleague had been promoted ahead of her meant the entire claim was in time and as she had resigned promptly after the final straw.

The Respondent appealed and the EAT allowed the appeal. It held the ET’s finding was perverse and unclear. The ET had been wrong to find that the final straw had unaffirmed the breach and remitted the case back to ET to be redecided.

The takeaway point:

In order for a final straw argument to succeed there has to be a fundamental breach of contract. In this case there had been a fundamental breach of contract. However that fundamental breach of contract was a year before. Because the employee had taken no action on it that breach had been affirmed. You can not take action on an affirmed breach. Therefore a final straw without an accompanying fundamental breach is not enough to claim constructive dismissal.