What’s the “final straw”?

Where an employer commits a fundamental, breach of contract, an employee has the right to resign and claim constructive dismissal. For some years now it’s been a well-established legal principle that, in order to do this, the employee does not have to rely on a single event or incident. They can resign and claim constructive dismissal where the last in a series of acts or incidents is the final straw.

It can be a minor problem

An incident can be the final straw if, no matter how minor, it directly contributes towards a breach of the implied duty of trust and confidence that exists between the employee and their employer. But let’s suppose the boot is on the other foot and, after a number of previous incidents, an employee does something that, for you, is the final straw. Could you dismiss them because of it?

New High Court ruling

This has been the subject of much uncertainty but the High Court has now confirmed that the final straw principle can indeed be used by both employers and employees. In the relevant case Andrew Kearns (K) was employed as an oil trader in Glencore’s (G) oil department between January 2009 and October 2010 on a salary of £140,000 plus other benefits.

That’s quite enough

During the course of his employment, there were various incidents where K’s excessive alcohol consumption had prevented him from working. Despite G arranging for him to see a specialist, these incidents continued. K was warned that any further instances of lateness or absence from work due to excessive alcohol consumption would result in his dismissal.

Shown the door

In 2010 K was required to go to Singapore for work. Whilst there he failed to attend a series of crucial business meetings. G alleged that this was due to him being hungover so he was summarily dismissed. Although it would appear that G didn’t fully investigate the matter, as it ought to have done, K didn’t appeal the decision. Also, instead of claiming unfair dismissal at the tribunal, he sued G for breach of contract in the High Court. It agreed that, regardless of the reason for his absence, the missed meetings were the final straw for G and dismissed his claim.

Whilst helpful for employers, you must always carry out an investigation and be able to show that the alleged misconduct happened. This is important as, in most cases, an employee will issue their claim in the tribunal (as opposed to the High Court) and it will expect you to have followed the Acas Code of Practice to the letter.