Last straw cases

The breach of contract that leads an employee to resign can be either one act, if it is sufficiently serious, or a series of actions which together amount to a breach. These are often referred to as “last straw” cases. They are common in situations involving bullying, harassment or discrimination. It does not matter if no single incident amounts to a fundamental breach, as long as taken together, they destroy the contractual relationship. However, there can only be a last straw if there are earlier instances of poor conduct by the employer (Achi v GMB and another [2023] EAT 29).

Reasonable behaviour by an employer is unlikely to be regarded as a “last straw” justifying resignation, regardless of what came before (London Borough of Waltham Forest v Omilaju [2005] IRLR 35). Any employee contemplating resignation should ensure any eventual resignation is linked to an incident that is unarguably unreasonable.

An employee who has affirmed a series of past incidents, for example, by putting up with cumulative minor incidents of bad behaviour, can rely on a further incident to “revive” earlier breaches, justifying a resignation and a claim for constructive dismissal. The key question here is whether the “last straw” is part of a course of conduct that, when taken together, amounts to a breach of the duty of trust and confidence resulting in the resignation (Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978).