Business Law: Will Oakes on when ‘the final straw’ can justify dismissal

Will Oakes of Attwells Solicitors.

Will Oakes of Attwells Solicitors. - Credit: Archant

An employee can resign and claim constructive dismissal in the event of a breach of employment law or some other form of mistreatment.

For some years now it’s been an established legal principle that, in order to do this, an 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’s important to note that the final straw itself does not have to be significant or major. All that matters is that 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?

Until recently it was unclear where employers stood. However, in a case last year, the High Court confirmed that the final straw principle can indeed be used by both employers and employees.

The case concerned a trader whose employment over 22 months involved a number of incidents where excessive alcohol consumption prevented him from working. The employer arranged for him to see a specialist, assistance which the employee declined, and he was then warned that any further instances would result in his dismissal.

In 2010, while away on business in Singapore, he failed to attend a series of crucial meetings. The employer alleged that this was due to him being hungover (the employee admitted having been out consuming alcohol until 4.30am on the morning of the missed meetings) and so he was summarily dismissed.

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The employee did not appeal the decision but, instead of claiming unfair dismissal at the tribunal, he sued the company for breach of contract in the High Court. The court agreed that, regardless of the reason for his absence, the missed meetings were the final straw for the employer and dismissed his claim.

While this ruling is helpful for employers, it doesn’t mean you can dismiss an employee on the spot if they do something that’s “the final straw”. You must 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 to the letter.

: : Will Oakes is a partner at Attwells Solictors.

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