Folu Omilaju (“Mr Omilaju”) resigned from his employment with the London Borough of Waltham Forest (“the Council”) and claimed constructive dismissal. The Council had refused to pay him for the time he was absent without leave attending an Employment Tribunal hearing in which Mr Omilaju made various discrimination claims against the Council. Mr Omilaju’s contract of employment allowed the Council to do this. Mr Omilaju claimed that the Council’s decision not to pay him for his time away from work was “the last straw in a series of less favourable treatments that I have been subjected to over a period of years”.

The Court of Appeal summarised that the general question in constructive dismissal “final straw” cases was whether the cumulative series of acts taken together amount to a breach of the implied term of trust and confidence.

The Court of Appeal went on to explain this test further. The first principle is that a final straw act cannot be “utterly trivial” although it can be “relatively insignificant” as long as it contributes something to the breach (the de minimis principle). The second principle is that the final straw act must contribute to an earlier series of acts which have the cumulative effect of breaching the implied term of trust and confidence. The final straw is the trigger by which the court can examine a series of events which in their entirety amount to a breach of trust and confidence between employer and employee.

The court made clear that it is these two principles which define what is and is not a “final straw”. It explicitly opened up the meaning of “final straw” by saying that the final straw act need not be “of the same character as the earlier acts”, so long as it forms part of the same series of events which cumulatively breach the implied term. In addition, the court removed the moral element from the definition of “final straw”: when examined in isolation “the final straw may not always be unreasonable, still less blameworthy”. However, in practical terms, the court pointed out that it would be an “unusual case” where reasonable and justifiable behaviour can amount to a final straw. This is because a reasonable and justifiable act is unlikely to form the final episode in a cumulative series of acts which undermine the trust and confidence in the employment relationship.

The test therefore remains an objective one. Whether an act can amount to being a final straw does not depend on the views of the employer or the employee but on whether a reasonable person would conclude that the act was a final straw using the above definition. An employee who overreacted to an utterly trivial act cannot, therefore, claim that that act was a final straw because that is how they perceived it.

The Court of Appeal therefore found that the Council’s decision not to pay Mr Omilaju for his unauthorised absence did not have the necessary quality of reasonably undermining Mr Omilaju’s trust and confidence in the Council since it was reasonable conduct allowed under his contract. Therefore that decision could not be the final straw in a series of acts which cumulatively amounted to a breach by the Council of the implied term.

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