The final straw?
Omilaju v Waltham Forest LBC, Court of Appeal, 11 November 2004
Waltham Forest council employed Mr Omilaju in its housing department. Between February 1998 and August 2000, he issued five sets of proceedings against his employer for alleged race discrimination, victimisation and interference with trade union activity. These were all dismissed by the tribunal in September 2001.
While Omilaju was attending the tribunal hearing, the council refused to pay his full salary. He resigned, claiming that his employer’s refusal to pay him was “the last straw in a series of less favourable treatments…”.
His claim for constructive dismissal failed. But the Employment Appeal Tribunal (EAT) reversed this decision, and the employer went to the Court of Appeal (CA).
In its decision, the court refined the definition of the ‘final straw’ test in constructive dismissal cases. The CA held that an act, which constitutes the ‘final straw’, need not of itself be unreasonable. Rather, it must be the last in a series of acts, and contribute to a cumulative breach of the implied term of trust and confidence.
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This judgment moves away from the previous test, where the conduct had to be ‘blameworthy’ or ‘unreasonable’.
Taking an objective view, the refusal to pay Omilaju’s salary was not the final straw in a series of acts that would have allowed him to resign and claim constructive dismissal.
The CA ruled that the EAT had been wrong to allow the appeal against the tribunal decision, and that the employment tribunal’s original decision had been correct.
