The First-tier Tribunal (FTT) has allowed a taxpayer's appeal against late filing penalties ...
The Employment Appeal Tribunal (EAT) has upheld an HGV driver’s appeal in a constructive unfair dismissal case, finding that the Employment Tribunal (ET) had misdirected itself when applying the legal test for the ‘last straw’ principle (Marshall v McPherson Ltd).
Background to the Claim
The driver’s role involved collecting spent grain from distilleries and transporting it to a biogas plant. Following operational changes, he felt increasing pressure to complete his duties without proper breaks. Despite raising concerns with his manager, he was told to “crack on.”
In November 2023, another driver was instructed to accompany him and check that he was tipping grain correctly - a move that he found undermining, particularly after years of carrying out his role without criticism. He raised concerns about both his treatment and his safety at work, before resigning the following month.
Employment Tribunal’s Decision
The ET rejected his constructive dismissal claim, holding that:
The employer’s decision to check his performance was not a repudiatory breach of contract.
The incident did not “revive” earlier concerns, such as a near-miss with overhead power lines.
Delays in investigating his safety concerns were not sufficiently serious to amount to a repudiatory act.
EAT Findings
The EAT disagreed, concluding that the ET had applied the wrong legal test. While the ET acknowledged the correct authorities, its language suggested that unless the final incident was itself repudiatory, it could not revive earlier events.
The EAT emphasised that the proper approach is to consider whether the final act formed part of a cumulative course of conduct, which, taken together, could amount to a repudiatory breach. Since the ET had not considered the case on that cumulative basis, this was a fundamental error of law.
Outcome
The EAT allowed the appeal and remitted the case to a freshly constituted ET for rehearing.
Key Takeaway for Employers
This decision serves as an important reminder for employers: even where an isolated act seems minor, it may still be relevant if it forms part of a wider pattern of conduct that undermines the employment relationship. Careful handling of employee concerns and fair treatment in the workplace are essential to avoid constructive dismissal claims.