When a constructive dismissal claim is made on the basis of a "last straw" it means an employee has resigned in response to a number of breaches of contract or a series of incidents which, if taken cumulatively, amount to a breach of the implied term of trust and confidence.  As long as the employee does not affirm the contract and the employee resigned in response (or partly in response) to the breach then a constructive dismissal claim may be made out.  Following a number of cases on the issue, the Court of Appeal found that the "last straw" for the purposes of the breach of the implied term of trust and confidence cannot be utterly trivial, it must contribute something to the breach - an entirely innocuous act cannot be the last straw.

The issue of the innocuous last straw was considered again In Williams v Alderman Davies Church in Wales Primary School.  Mr Williams was a teacher at the school.  He was a disabled person by virtue of a mental impairment that affected his demeanour and behaviour in stressful situations.  Following a suspension linked to an investigation into child protection matters, he returned to work but not to teaching duties. He was not informed of the details of the matter.  He was instructed to organise a sports day which led to him developing severe symptoms of stress and being sent home pending medical investigations.  He was then suspended again, this time for a breach of the school's data protection policy.  He brought an unsuccessful grievance and then resigned after the school refused to identify the complainant in the child protection matter. 

An employment tribunal dismissed Mr Williams' constructive dismissal claim.  The tribunal had found that the "last straw" that triggered the resignation was the school's refusal to allow Mr Williams to contact his union rep, however they found that it was an innocuous act that did not contribute to any breach of contract.  According to the tribunal, this was fatal to the claim as a last straw must contribute something to the repudiatory breach.  The claim therefore failed despite the tribunal finding that there was earlier conduct that both amounted to a breach of the implied term of trust and confidence and contributed to the decision to resign. 

The EAT disagreed.  They found the tribunal had approached the matter incorrectly.  The tribunal should have looked at the earlier acts and considered if they added up to a fundamental breach of contract.  If there was a breach the tribunal should have then have considered if Mr Williams had subsequently affirmed the contract - which he had not.  As long as there has been conduct by the employer that amounted to a fundamental breach and the employee resigns at least partly in response to it, then there has been a constructive dismissal.  The fact that there had been subsequent conduct by the employer - in this case the refusal to allow contact with the union rep - which also contributed to the decision to resign (but not the breach of contract) doesn't negate the constructive dismissal.

Mr William's case may prove to be quite unusual.  The straw that broke the camel's back in terms of the implied duty of trust and confidence preceded the straw that broke his resolve to remain in employment.  Often a delay between these two things will amount to an affirmation of contract in which case a constructive dismissal claim would not succeed.  Where that delay does not result in affirmation employers need to be aware that the last straw for the purpose of resignation need not be the last straw for the purpose of the breach of the implied term of trust and confidence.  Employees may be able to succeed in constructive dismissal claims even when the final act which leads them to resign is entirely innocuous.