What's the "final straw"?
Where an employer commits a fundamental, breach of contract, an
employee has the right to resign and claim constructive dismissal.
For some years now it's been a well-established legal principle
that, in order to do this, the 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 can be a minor problem
An incident can be the final straw if, no matter how minor, 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?
New High Court ruling
This has been the subject of much uncertainty but the High Court
has now confirmed that the final straw principle can indeed be used
by both employers and employees. In the relevant case Andrew Kearns
(K) was employed as an oil trader in Glencore's (G) oil
department between January 2009 and October 2010 on a salary of
£140,000 plus other benefits.
That's quite enough
During the course of his employment, there were various
incidents where K's excessive alcohol consumption had prevented
him from working. Despite G arranging for him to see a specialist,
these incidents continued. K was warned that any further instances
of lateness or absence from work due to excessive alcohol
consumption would result in his dismissal.
Shown the door
In 2010 K was required to go to Singapore for work. Whilst there
he failed to attend a series of crucial business meetings. G
alleged that this was due to him being hungover so he was summarily
dismissed. Although it would appear that G didn't fully
investigate the matter, as it ought to have done, K didn't
appeal the decision. Also, instead of claiming unfair dismissal at
the tribunal, he sued G for breach of contract in the High Court.
It agreed that, regardless of the reason for his absence, the
missed meetings were the final straw for G and dismissed his
claim.
Whilst helpful for employers, you must always 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 of Practice
to the letter.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.