Repudiatory breach and the last straw
The Employment Appeal Tribunal (EAT) has held that the tribunal was wrong in its failure to consider the last straw doctrine when concluding that there was no repudiatory breach entitling the claimant to resign and claim constructive dismissal in Craig v Abellio.
The claimant was a bus driver. He resigned in July 2019 following a period of sickness absence. He alleged that he had experienced a number of problems with his hours and pay, that during his sick leave he had not been paid the correct sick pay and that the employer had failed to address his complaints. He raised a grievance which was initially rejected and then accepted on appeal. The appeal outcome was to pay the claimant £6,000 in back pay by a specific date, and when the employer failed to make the payment on time, the claimant resigned claiming that this was the last straw following a pattern of poor treatment.
The tribunal held that the issue of back pay had been addressed and that the missed payment date was a mistake. It followed that there was no repudiatory breach of contract, or a last straw event. On appeal the EAT held that the tribunal had failed to make appropriate factual findings and apply the principles of the last straw doctrine to the facts. The case was remitted to a different tribunal for reconsideration.
Take note: The EAT held that the fact that the last straw relied on was an administrative error only was not decisive. Not only did the claimant not know the reason for the non-payment, but the tribunal should have considered the full sequence of events before coming to a conclusion about the last straw doctrine.