The claimant encountered problems with several colleagues whom she felt were bullying her, although no action was taken. Later, an ‘altercation’ took place with a colleague and the claimant went off sick. After an investigation, disciplinary proceedings were brought against both and final written warnings were given for "inappropriate behaviour". After an unsuccessful appeal, the claimant resigned stating that the incident with her colleague was the "final straw". She argued a fundamental breach of the implied term of trust and confidence.

The ET dismissed the claim, as the trigger for the resignation was the dismissal of her appeal. The disciplinary process, and its outcome, were deemed fair and reasonable, and thus could not amount to a 'last straw'.

The Court of Appeal had to consider whether the claimant could 'revive' a series of breaches which she had affirmed previously. It held that an employee who is the victim of a continuing cumulative breach can rely on the totality of the employer's acts, notwithstanding a prior affirmation; provided the later act forms part of the series.

However, in this case the disciplinary process was fair and could thus not ‘revive’ the claimant’s right to resign. The appeal was dismissed.

Practical Lessons

Employers need to be careful as, in principle, this decision confirms that employees may revive historical allegations if there is a later breach of contract which can be considered part of a cumulative series of acts. The employee may then resign and claim constructive dismissal, as long as the resignation is in response to an act which is capable of contributing to the cumulative breach.

This case clarifies the legal position on such ‘last straw’ situations, since previous case law had suggested that when a contract has been affirmed a previous breach cannot be 'revived'. The Court of Appeal also set out a list of key questions that will be relevant to deciding such cases in the future.
http://www.bailii.org/ew/cases/EWCA/Civ/2018/978.html