The recent Employment Appeal Tribunal (EAT) case of Wishaw and District Housing Association v Moncrieff has illuminated what does and does not constitute a “last straw” in a constructive dismissal case.

Mr Moncrieff had gone off sick from his job with the Housing Association, citing stress. Previously, his performance had been criticised by the Association, and it had been indicated that formal disciplinary procedures would be commenced in the future. He disputed these criticisms, and the pressure of the situation, exacerbated by domestic difficulties also faced by Mr Moncrieff, had led to him becoming ill.

The lines of communication between Mr Moncrieff and the Association began to break down as their relationship deteriorated, and, after months of correspondence mainly through their solicitors, Mr Moncrieff eventually resigned.

He subsequently brought a case for constructive unfair dismissal against the association using a “last straw” argument, in which he claimed that he had not been treated fairly with regard to the issues raised about his performance, and that the behaviour of his employer had generally been intimidating, unsatisfactory and harassing.

The original case had resulted in a judgement in favour of Mr Moncrieff - however, the Housing Association appealed, and successfully overturned the decision.

In reviewing the original tribunal’s decision, the EAT determined that the case revolved around the “last straw” principle, and so should have:

1. Identified the act which constituted the “last straw”.
2. Objectively assessed that act, and determined whether or not it was capable of contributing to a series of earlier acts which, taken together, could constitute a cumulative breach of the implied terms of trust and confidence implicit in a contract of employment.
3. If the “last straw” act did have that potential, the tribunal should then have considered the other acts on the series and asked whether, in total, these acts were of sufficient import to render the contract of employment null and void.

The EAT could find no indication in the original tribunal’s judgement that a specific “last straw” had been identified, or indeed that the correct procedure had been followed in the hearing. Based purely on this finding, the original decision could not be justified.

However, the EAT went further in finding that there were only two pieces of evidence which could have been considered a “last straw”. One was a letter informing Mr Moncrieff that if he continued to be absent, then the Housing Association’s absence procedures would come into effect. The other was another letter which simply sought to take the situation forward.

The EAT found that neither of these pieces of evidence could be considered a “last straw”, so Mr Moncrieff’s claim could have no chance of success.

Technorati Tags: Constructive Dismissal, Last Straw, Unfair Dismissal