Constructive dismissal and an innocuous "last straw"
The Employment Appeal Tribunal (EAT) has considered in Williams v Governing Body of Alderman Davies Church in Wales Primary School whether a last straw which, in itself, is innocuous, is enough to tip the employee into resigning leading to a successful constructive dismissal claim.
Mr Williams was suspended in April 2015 because of what he was told was a child protection matter. Following a social services investigation which concluded that no further action should be taken, the suspension was lifted, and he was allowed to return to school, though not to teaching duties, while the school continued with its internal disciplinary investigation. Shortly after this Mr Williams went off sick suffering from stress.
After his suspension Mr Williams had downloaded a large amount of documentation from the school system, relating to what he perceived to be his poor treatment, in order to consult his trade union representative, a fellow teacher at the school. When the school discovered this in 2016 it re-suspended him and commenced disciplinary action against the union representative. Prior to this Mr Williams had initiated a grievance relating to the school's handling of the disciplinary process; his grievance was dismissed as was his appeal against this decision. On 16 June 2016 he wrote a letter of resignation, triggered by information he had received from his solicitor that his trade union representative had been prohibited by the school from contacting him.
At first instance the tribunal dismissed his constructive dismissal claim, holding that as the last straw was innocuous it could not contribute to the previous actions of the employer. The EAT disagreed, holding that, provided that there had been earlier conduct which constituted a breach of the implied term of trust and confidence and the contract had not been reaffirmed, then a further innocuous act which tips the employee into resigning does not prevent the previous recent conduct being thought of by the employee as the last straw.
Take note: Following the decision in Williams employers need to be aware that even seemingly innocuous acts on their part may be capable of reviving an earlier fundamental breach of contract. If this earlier breach contributes to the employee's decision to resign it may be possible for a constructive dismissal claim to succeed even though the "last straw" itself does not contribute to the implied breach of trust and confidence.