April 06 2005
In London Borough of Waltham Forest v Omilaju (unreported 2004/0815 11 2004) the Court of Appeal decided that in cases of 'last straw' constructive dismissals, the act upon which the employee relies as the last straw need not necessarily be unreasonable or blameworthy - although cases where reasonable conduct by the employer can be successfully relied upon by the employee to constitute the last straw are unlikely. The test is whether the final incident relied upon by the employee forms or contributes to the cause of conduct overall.
The test for deciding whether an employee has been constructively dismissed is whether the employer has committed a repudiatory breach of contract.(1) However, the development of the implied term of trust and confidence has enabled employees to claim constructive dismissal in circumstances where a course of conduct by the employer amounted to a breach of that term, even though the individual incidents were not, of themselves, breaches of contract.(2) These are known as the 'last straw' cases. These cases often turn on whether the last act relied upon by the employee is sufficient to entitle him or her to claim constructive dismissal. In Lewis v Motorworld Garages Ltd (1986 ICR 157), Lord Justice Glidewell said: "the question is, does the cumulative series of acts taken together amount to a breach of the implied term?" The final act does not need to be a breach of contract but, according to the Employment Appeal Tribunal in Lewis, it needs to be at least blameworthy or unreasonable.
Omilaju brought proceedings before the employment tribunal against his employer, the local council. In July 2001 he took a considerable amount of time off work (without permission) to attend the hearings. The council, in accordance with its stated policy, did not pay Omilaju for these absences. Omilaju argued that the non-payment of his salary was the last straw in a number of other earlier incidents, which entitled him to claim constructive dismissal for breach of the implied term of trust and confidence.
The court upheld the employment tribunal's view that the non-payment of Omilaju's salary was reasonable and was therefore not a last straw act upon which to base his constructive dismissal claim. However, the court commented that a last straw act relied upon by an employee need not necessarily be unreasonable or blameworthy conduct by the employer - although it would be unlikely to be sufficient in a last straw case where the employer acted reasonably. The court said that the appropriate test was to look at the complete course of conduct and decide whether the last straw relied upon contributed towards the breach of the implied term of trust and confidence. Therefore, trivial incidents should be ignored.
Employers must welcome this decision, as it emphasizes that the last straw must contribute to the cumulative effect of the breach. However, what is of importance is that the last act - even viewed on its own - does not have to be unreasonable or blameworthy. The test for the employment tribunal is whether the last act contributed towards the undermining of trust and confidence (ie, it is an objective test).
For further information on this topic please contact Fraser Younson, Alison Wetherfield, Rebecca Harding-Hill or Melanie Slocombe at McDermott Will & Emery by telephone (+44 20 7577 6900) or by fax (+44 20 7577 6950) or by email (email@example.com or firstname.lastname@example.org or email@example.com or firstname.lastname@example.org). The McDermott Will & Emery website case be accessed at www.mwe.com.
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