Veitch Penny LLP - Exeter | Crediton, Devon

Case

Omilaju v Waltham Forest London Borough Council
Court of Appeal - (11 November 2004)

Issues

(1) Unfair dismissal
(2) Constructive dismissal
(3) “Last straw” situation

Facts

Omilaju was employed as a housing officer for the council. He made five complaints of discrimination to the employment tribunal against his employers between February 1998 and August 2000. All of his complaints were dismissed. He resigned from his employment at the end of September 2001 after the council refused to pay him for days spent at the employment tribunal dealing with the discrimination claims. Then in October 2001 he submitted a further application claiming that he had been constructively unfairly dismissed.

The tribunal found that his resignation would have been justified had he chosen to resign following the earlier events of which he had previously complained. However, it went on to find that the immediate cause of his resignation was not sufficient to constitute a breach of contract. The decision not to pay Omilaju was in line with the council policy. Consequently, Omilaju was found not to have been unfairly dismissed.

Omilaju then appealed the decision. The Employment Appeal Tribunal (EAT) allowed the appeal and found that the tribunal had erred in applying the “last straw” principle. It confirmed that the last straw incident itself did not need to be unreasonable.

The matter was then referred to the Court of Appeal, who had to consider whether this final act could be relied upon as a repudiation of the employee’s contract.

Decision

The appeal was allowed.

The Court of Appeal confirmed that the last straw did not need to have been an unreasonable act. The essential and only feature to consider was whether the incident contributed to a breach of the implied term of trust and confidence. It should be last in a series of acts which, overall, create a breach of that term. This was an objective test.

Comments

In this case, the failure to pay had not been viewed by the tribunal as the last straw in a series of acts, because it did not undermine the mutual trust and confidence between the parties. Accordingly, the tribunal’s decision that he had not been unfairly dismissed was the correct one.