An interesting constructive dismissal claim has recently been decided by the Employment Appeal Tribunal in Edinburgh looking at what can and cannot amount to a last straw entitling an employee to treat their employment contract as discharged following a series of failures by their employer.

In this case the Employment Tribunal had found for the employee and decided that he had been unfairly dismissed.  However, the Tribunal had failed to identify what had been the last straw.  The Employer appealed.  Briefly, the facts were that performance issues had been raised with the employee along with an indication that formal disciplinary proceedings were to be commenced in relation to them.  He was then given the notes recording the initial discussion following which he took sick leave.  There was a suggestion that his sickness absence was work-related but also that it was related to a number of family issues.  After correspondence lasting some months and mainly between lawyers, the employee resigned.  He had not returned to work from sick leave lasting almost 6 months.

His letter of resignation stated that he was resigning because he had not been treated fairly in relation to the issues raised about his performance and because of his employer’s intimidatory, harassing and generally unsatisfactory behaviour towards him.

The EAT identified 2 letters from the employer which could have been the last straw.  One was a letter agreeing to referral to ACAS to resolve the issues but also containing a paragraph at the end indicating that if the employee was not well enough to return to work the employer would ask him to attend a meeting where dismissal would be considered.  The other was a letter, following receipt of a further sick note from the employee, asking for an indication of when he might be well enough to return to work.  Both sound fairly innocuous do they not?  Well, that’s what the EAT decided.  Instead of remitting the case back to the Tribunal they dismissed the appeal, concluding that neither of those letters could amount to a last straw and so the claim for constructive unfair dismissal relying on the last straw doctrine was not made out.