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Last straws, shopping while working and acts outside of work: employment law latest
Dan Carder, Human Resources Content Consultant, Peninsula, shares details of three interesting recent employment law cases, along with their outcomes
The ‘last straw’ doesn’t need to be serious in itself for constructive dismissal In the case of Marshall v McPherson Ltd, the Employment Appeal Tribunal (EAT) had to consider whether the Employment Tribunal (ET) correctly assessed the claimant’s last straw when claiming constructive dismissal. The claimant worked as a driver for the respondent, which is a large haulage company. After working there for several years, processes were changed, and they found it difficult to take breaks and complete their duties. They even manipulated the tachograph in their lorry to make it appear that they’d taken breaks when they hadn’t. They often had trouble completing the work and reported this to their line manager, who told them to “crack on”. They said they would see what they could do but this wasn’t taken any further. Another time, a different driver was sent to accompany the claimant to check they were doing their work properly. This annoyed the claimant as they’d been doing the job for many years without issues, and following this event they made it clear they wanted to leave their position. They sent an email containing several issues to a manager, including two safety incidents from five years prior that had been reported but not investigated, and said they wouldn’t return to work until they’d been addressed. Following a meeting to discuss these issues, the claimant was told they would be reallocated to a different role. They refused this alternative, arguing the issues
they’d raised weren’t being dealt with. They also referred to a caustic exposure incident reported five years previously that hadn’t been investigated and expressed their concern for their safety and wellbeing at work. In response, the respondent informed the claimant they wouldn’t be paid. Only then were the issues investigated, although the claimant wasn’t told that. The claimant resigned and claimed constructive dismissal, alleging the respondent’s actions overall amounted to a repudiatory breach of the implied term of trust and confidence. The ET acknowledged that a breach of the implied obligation of trust and confidence can consist of a series of actions on the part of the employer, which cumulatively amounts to a breach of the term. The question it had to answer, it said, was whether the cumulative series of acts taken together amounted to a breach of the implied term. Although there was no requirement for there to be “proximity in time or nature” between a last straw and earlier breaches of the term, the ET held, the respondent’s action in assigning another driver to check up on the claimant wasn’t itself a repudiatory act, and nor was the delay in investigating the concerns the claimant raised. Based on that, the ET decided the last straw wasn’t sufficiently serious to find a constructive unfair dismissal. The claimant appealed this decision. On appeal, the EAT upheld the claim. It held that the last straw doctrine didn’t
require the last act in the series of acts to be a serious breach in its own right. What was key was that overall, the course of conduct by the employer collectively amounted to a breach of the implied term of trust and confidence. Altogether, the incidents were sufficient to be a breach of that term, and the appeal was upheld. Employee unfairly dismissed for shopping at work In the case of Lanuszka v Accountancy MK Services Ltd, the ET had to consider whether the alleged misconduct was the real reason for the dismissal. The claimant was the only full-time employee of the respondent, which provided accountancy services. The respondent’s director had also previously been a director of Accountancy MK Ltd, the respondent’s predecessor, which ceased trading when the respondent was set up. The claimant continued performing the same role for the respondent as they had done for the predecessor. They signed a new contract which gave their start date as their first day with the respondent and not the predecessor. Spyware software was installed on the claimant’s computer by the director, which revealed the claimant had been browsing sites such as Rightmove, Very and Amazon during working hours. the claimant was then summarily dismissed. The dismissal letter stated that the claimant had been “engaged in private business activities during [her] working hours” and was dismissed because
| Professional in Payroll, Pensions and Reward | November 2025 | Issue 115 58
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