Thread by @JasonBraier

1/ Craig v Abellio: ET erred in failing to consider the last straw doctrine in a last straw case. Also some useful comments on whether there's a fundamental breach in not making a payment due to genuinely but wrongly disputing it's due.
bailii.org/uk/cases/UKEAT…
#ukemplaw

2/ In this case there was significant dispute about what pay was due to C during a lengthy sickness absence. After an unsuccessful grievance but successful appeal it was found he was due £6,000 backpay, which A then failed to pay on the day they said they would. C resigned.

3/ In finding that there wasn't a repudiatory breach entitling C to take constructive dismissal, the ET found the faillure due to a mistake soon resolved, but gave no consideration at all to the last straw doctrine & whether C succeeded under it.

4/ Unsurprisingly the EAT found the ET erred by that failure.

5/ The EAT then went on to consider authorities on whether there is still a fundamental breach in not paying sums which are found to have been due but which the employer genuinely didn't think was due at the time & is willing to resolve through a grievance process.

6/ The EAT accepted there may be arguments that there is no breach of the implied duty of trust & confidence in those circumstances, but considered it would still breach an express contractual term as to payment. The key is the CA judgment in Financial Techniques v Hughes.

7/ The EAT also expressed the view that the erroneous non-payment in this context could amount to a last straw, but emphasised that it was not deciding the point or setting out any general principle in respect of it given that there was no need to do so to allow the appeal.