Can a mere administrative error create a claim for constructive unfair dismissal?

In a recent case before the Employment Appeal Tribunal, Craig v Abellio Ltd [2022] EAT 43, the Claimant, a bus driver, brought a case of constructive unfair dismissal where he relied on a course of conduct by his employer culminating in one final act causing his resignation – a principle often called the “last straw”.

Craig’s employer argued that the act Craig relied upon for the last straw was in fact an administrative error and, therefore, did not amount to a fundamental breach of his contract of employment.

The Employment Tribunal original upheld that viewpoint and Craig appealed to the Employment Appeals Tribunal who overruled the decision.

The law of constructive unfair dismissal and the ‘last straw’ doctrine

The Employment Appeal Tribunal provided a helpful summary of the principles related to the last straw principle – noting that the Employment Tribunal should have taken into account the full sequence of events before determining whether the last straw principle applied.

• In this particular case, Craig had raised a number of grievances during his employment, relating to back pay issues.
• He was owed over £6,000 in back pay and was assured this would be paid by a set date.
• When that was not paid and the employer provided no explanation as to the reason, he affirmed that he considered himself to be constructively unfairly dismissed and the non-payment of the monies accepted as due to him being the “last straw.”

The EAT noted that in the absence of any explanation from the employer, and with consideration of the repeated issues surrounding his pay, Mr Craig rightly held the view he was being mistreated again.

What can employers do?

One of the key areas for consideration here is that, no matter how genuine the reason for a mistake an employer makes, the wider context of that mistake will always be considered by the Employment Tribunal.

It is clear to see how these monies, which were not insignificant, should have been considered a priority to have been paid on time.   This brings to mind many grievances we often see where the agreed outcomes aren’t actioned in a timely manner, leading to more disputes and further issues.

If you commit to resolving a dispute in a certain way and can’t complete this as expected, as a minimum you should ensure you keep the employee appraised of the reasons why and what they can expect next.