About this case:

• Citation:
  [2025] EAT 100
• Judgment:
  External link
• Court:
  Employment Appeal Tribunal
• Judge:
  Lady Haldane

Claimant and appellant James Marshall brought a claim for constructive unfair dismissal against his employer McPherson Ltd which was dismissed after the ET found that there was no last straw leading to the claimant’s resignation. On appeal, he argued that the ET had misdirected itself as to the law and erred in holding that the respondent was not in repudiatory breach of contract.

The appeal was heard by Lady Haldane, with Laurence Cunningham appearing for the claimant and Kenneth McGuire for the respondent.

Told to crack on

Much of the respondent’s business involved the removal of draff (spent grain) from the sites of Speyside whisky distillers, to be used either as cattle feed or to be turned into biomethane at plants including the Grissan Riverside Mill in Dufftown. The claimant worked as an overnight driver taking draff and loading it into a hopper at the Mill to allow for a 24-hour continuous feed of draff to the plant.

In about May 2023, the Mill replaced its intake system, with the result that the capacity of the Mill doubled to 500 tons of draff per day. The new system took less time to deplete the hopper than the old system, which resulted in the claimant encountering difficulties with taking breaks and completing his other duties. He resorted to manipulating the tachograph in his lorry to make it appear that he had taken his scheduled breaks, when in fact he could not. The claimant told his line manager about his issues, but he was told to “crack on” and the issue was not recorded.

Following a shift in which the respondent instructed another driver to accompany the claimant to check if the draff was being tipped properly, the claimant emailed the respondent’s operations manager to raise his issues. He was assigned a local driving role but declined the transfer stating he felt his complaints continued to be ignored, including a lack of investigation of an incident from 2017 in which he was exposed to caustic steam. On 20 December 2023, he resigned, saying in his resignation email that he considered this to be constructive dismissal.

The ET analysed the various events that might have been considered a “last straw” for the claimant but considered that the respondent’s checking up on the claimant was not capable of reviving the 2017 incident, nor could the delay in concluding that investigation be considered the last straw. It was submitted on appeal that the ET had misdirected itself in these regards and had mischaracterised the test as laid out in cases including Kaur v Leeds Teaching Hospitals NHS Trust (2018).

Material misdirection

In her decision, Lady Haldane said of the ET’s approach: “Whilst it might be argued that the ET can be seen, explicitly or impliedly, to have gone through the first three Kaur stages, it cannot be said with confidence that the rest of the exercise has been completed. Indeed, concluding that the ET has expressly or impliedly considered the question of whether or not the claimant did anything to affirm the contract, cannot be assumed with confidence.”

She continued: “However, more significantly, since the decision on the question of there being no final straw meant that the ET did not look at the question as a cumulative one, this error is properly described as a fundamental one. It follows that, although not a conclusion that should lightly be drawn, and despite the earlier impeccable self-direction on the law, the ET has fallen into error in its application of the law to the facts it found established.”

Considering what this outcome meant for disposal of the case, Lady Haldane noted: “Standing the conclusion reached in relation to Ground 1, the present case is one where the conclusion of the ET, based as it is on a material misdirection as to the law is wrong or at least might be wrong. I consider it is an open question as to how the ET would have decided the matter if it had directed itself correctly.”

She concluded: “A more nuanced question is whether that remit ought to be to the same Tribunal, with directions, or whether the remit ought to be to a freshly constituted Tribunal. There was, quite rightly, no suggestion of bias or a totally flawed decision (meaning that it was properly accepted that appropriate findings in fact were made, and that the initial self-direction on the law was appropriate). Legitimate concerns on the question of proportionality and a concern perhaps of there being a second bite at the cherry were also raised. Balancing all these factors as best I can, and with some hesitation, have concluded that the remit ought to be to a freshly constituted Tribunal.”

The appeal therefore succeeded on the first ground, although it was noted that the second and third grounds would not have been successful alone.