The Employment Appeal Tribunal’s decision in Marshall v McPherson Limited [2025] EAT 100 offers a timely reminder of the legal principles underpinning constructive unfair dismissal—particularly the “last straw” doctrine. The case explores whether an employee can claim constructive dismissal when the final incident prompting resignation is relatively minor and not repudiatory in isolation, but forms part of a broader pattern of conduct that undermines mutual trust and confidence.
Facts of the case
The Respondent, McPherson Limited, is a haulage company whose operations include transporting draff (spent grain) from whisky distilleries to be used as cattle feed or converted into biomethane. The Claimant, Mr Marshall, worked as an HGV driver, primarily on night shifts, transporting draff and unloading it into an intake hopper to maintain a continuous feed to the plant.
In May 2023, operational changes reduced the daily draff intake capacity, making it difficult for Marshall to complete his duties and take statutory rest breaks. He raised this with his line manager but was told to “crack on.” No formal record of the complaint was made.
Six months later, in November, the Respondent sent another driver to accompany Marshall on a shift – without prior notice – to observe and report on his performance. Marshall, a long-serving employee with no prior performance concerns, found this undermining. He emailed the Respondent expressing that he felt unable to return to work, referencing unresolved issues dating back to 2017 concerning working conditions and safety.
The Respondent then allocated a temporary local driving role as an alternative to Marshall, but he declined due to the unresolved nature of his previous complaints. The Respondent then refused to pay him for declining the transfer. Marshall resigned in December and brought a claim for constructive unfair dismissal, alleging a breach of the implied term of mutual trust and confidence.
A reminder of the law relating to dismissal
Under section 95(1)(c) of the Employment Rights Act 1996, an employee is deemed dismissed if they resign in response to a fundamental breach of contract by the employer. This breach may relate to an express or implied term – most commonly, the implied term of mutual trust and confidence – and may arise from a single serious incident or a series of events culminating in a “last straw.”
The “last straw” doctrine addresses situations where the final act prompting resignation is not serious in isolation but contributes to a cumulative breach. The key question is whether the overall pattern of conduct amounts to a repudiatory breach.
In Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978, the Court of Appeal set out a five-stage test for constructive dismissal:
- What was the employer’s conduct?
- Was that conduct a breach of contract?
- Was the breach sufficiently serious to justify resignation?
- Did the employee resign in response to that breach?
- Did the employee delay too long before resigning?
Employment Tribunal and EAT Decisions
The Employment Tribunal dismissed Marshall’s claim, finding that the final incident—the performance check—was not a repudiatory breach. It also concluded that earlier concerns from 2017 were not “revived” by the 2023 incident.
On appeal, the EAT overturned the Tribunal’s decision. Lady Haldane held that the Tribunal had misdirected itself in law by requiring the final act to be repudiatory. The correct approach is to assess whether the cumulative conduct undermines mutual trust and confidence, regardless of whether the final act is serious in isolation.
The case was remitted to a freshly constituted Tribunal for reconsideration.
What are the takeaways from this?
- Take employee concerns seriously: Respond promptly, transparently, and document all complaints and how they have been addressed — especially when the employee has raised issues previously.
- Cumulative conduct counts: A single event need not be serious to justify resignation. Minor incidents can contribute to a broader pattern that breaches trust and confidence.
- Past conduct may be revived: Previous issues, even if tolerated at the time, can be relevant when assessing cumulative breaches. Tolerance does not equal waiver.