Marshall v McPherson Ltd [2025] EAT 100

An HGV driver resigned claiming constructive unfair dismissal after workplace pressures and a perceived 'checking up' incident, citing earlier 2017 safety incidents. The EAT held the Tribunal misdirected itself on the 'last straw' test and remitted the case to a freshly constituted Tribunal.

Facts

The claimant, Mr James Marshall, was an experienced HGV driver employed by the respondent, McPherson Limited, a haulage company in Aberlour. He worked night shifts at the Grissan Riverside Mill in Dufftown, tipping draff (spent grain) from distilleries into hoppers for biomethane production. In May 2023, the Mill introduced a single intake system which doubled capacity and increased pressure on drivers. The claimant struggled to take breaks and resorted to manipulating his tachograph. He raised concerns with his line manager but was told to ‘crack on’.

On the night of 6/7 November 2023, the respondent instructed another driver to accompany the claimant during his shift to check his tipping, without forewarning. The claimant was annoyed and decided he wanted to leave. Following correspondence and a meeting on 13 November 2023, the claimant declined a temporary transfer to a local driving role and remained unpaid. He also referred back to two 2017 incidents: an unintentional caustic steam exposure at Glenlossie Distillery, and a near-miss involving overhead power lines at Allanbuie. On 20 December 2023, the claimant resigned, claiming constructive dismissal.

The Employment Tribunal dismissed the claim. The claimant appealed on four grounds, of which three were permitted to proceed.

Issues

The principal issue was whether the Employment Tribunal, despite correctly setting out the applicable legal principles relating to constructive dismissal and the ‘last straw’ doctrine, had failed properly to apply those principles to the facts found, particularly in paragraphs 70 and 71 of its Judgment. Secondary issues concerned whether the decision was perverse, whether irrelevant matters were considered or relevant matters omitted, and the appropriate disposal if the appeal succeeded.

Arguments

For the Appellant

Mr Cunningham submitted that the ET’s statement that a ‘last straw’ which was ‘not repudiatory in nature’ could not ‘revive earlier acts’ was a fundamental misdirection contrary to Omilaju and Kaur. The ET had failed properly to consider whether the cumulative incidents amounted to a fundamental breach of the implied term of trust and confidence as set out in Malik, and had made no express finding on affirmation. Ground 2 was parasitic on Ground 1: having misdirected itself, the ET’s conclusion could not stand. Ground 3 supported Ground 1, demonstrating the ET had focused on the claimant’s conduct (such as not raising a grievance) rather than the employer’s conduct.

For the Respondent

Mr McGuire candidly accepted that the language in paragraphs 70 and 71 misstated the effect of Kaur but argued the error was not material. The ET had impeccably self-directed on the law elsewhere, and its overall conclusion that there was no ‘last straw’ contributing to a repudiatory breach was sound. The checking-up incident was unobjectionable and could not contribute to any breach. Affirmation could be inferred from the claimant continuing to work and be paid after 2017. The decision was not perverse, and any remittal should be to the same Tribunal.

Judgment

Lady Haldane allowed the appeal on Ground 1. While the ET had engaged in ‘an impeccable exercise in self-direction’ on the leading authorities including Omilaju and Kaur, the language used in paragraphs 70 and 71 was ‘suggestive of the application of a different legal test’. The misdirection went beyond clumsy language and went to the heart of the decision. There was no actual or inferential application of stages 4 and 5 of the Kaur five-stage test, particularly whether the act complained of was part of a cumulative course of conduct amounting to a repudiatory breach of the Malik term, and whether the employee resigned in response to that breach.

The error was described as ‘fundamental’ because the ET’s conclusion that there was no final straw meant it had not properly considered the cumulative question. This undermined confidence in the factual conclusions, especially given the ET’s own finding at paragraph 65 that the Allanbuie incident was capable of contributing ‘alone or with others’ to a breach of the implied term — a finding in tension with the conclusion that there was no final straw, given that the threshold in Omilaju is a relatively low one.

Ground 2 (perversity) failed: it could not be said that no reasonable Tribunal could have dismissed the claim. Ground 3 had no merit as a standalone perversity challenge but supported Ground 1 by reinforcing the suspicion that the ET had not consistently followed its own correct self-direction.

Disposal

Applying Sinclair Roche & Temperley v Heard, Jafri v Lincoln College, Dobie v Burns and Willow Oak Developments v Silverwood, Lady Haldane held that this was not a case where the EAT could substitute its own decision, as it was ‘an open question’ how the ET would have decided had it directed itself correctly. With some hesitation, she ordered remittal to a freshly constituted Tribunal, given the difficulty even a professional Tribunal would face in disentangling previous findings on the ‘last straw’ question and reconsidering the matter afresh.

Implications

The decision reinforces the proper approach to ‘last straw’ constructive dismissal claims as set out in Omilaju and Kaur. A final straw need not itself be unreasonable, blameworthy, or repudiatory; it need only contribute, however slightly, to the breach of the implied term of trust and confidence. Tribunals must apply the five-stage Kaur test in substance, including the cumulative assessment at stage 4 and the causation question at stage 5.

The judgment is a reminder that even where a Tribunal correctly sets out the applicable legal principles, an appellate court may intervene if the language used at the decision-making stage demonstrates the application of a different test. It also illustrates that perversity remains a high bar distinct from misdirection: a flawed application of the law does not automatically render a decision perverse.

On disposal, the case illustrates the careful balance applied under Sinclair Roche & Temperley when deciding whether to remit to the same or a freshly constituted Tribunal. Where the error infects findings central to the decision and goes beyond a discrete legal point capable of straightforward correction, remittal to a fresh Tribunal may be appropriate notwithstanding the professionalism of the original Tribunal. The decision is of practical significance to employment practitioners advising on constructive dismissal claims involving cumulative conduct and final straw events.

Verdict: Appeal allowed on Ground 1. The matter is remitted to a freshly constituted Employment Tribunal for rehearing.

Source: Marshall v McPherson Ltd [2025] EAT 100