Last Straw for Employees

12 December 2014

Historically, the ‘last straw’ doctrine has been used by employees to assert that an apparently trivial event has resulted in a serious erosion of the employer/employee relationship when viewed in light of the previous behaviour of that employer.  Now, following the ruling in Kearnsv Glencore UK Limited, employers are also permitted to use this argument to dismiss an employee on the basis of a relatively minor incident against a background of such erroneous behaviour.

The ‘last straw’ doctrine is summarised below:

  • the final event need not be a fundamental breach of contract
  • it must however be more serious than an utterly innocuous or negligible happening
  • it must contribute, however slightly, to the particular breach
  • it may be of a different nature to the earlier acts relied upon.

Employees have used this doctrine in constructive dismissal claims where they believe that the employer has undertaken a course of behaviour where individual incidents have not been serious, but when considered together amount to a breach of the employer’s implied duty of trust and confidence.  An employer may tolerate these minor incidents in order not to rock the boat, however the doctrine allows them to use evidence of these events when they feel that the situation cannot continue any longer.

In the Kearns case, the employee failed to attend a number of critical business meetings which Glencore alleged was due to his heavy drinking.  Glencore summarily dismissed Mr Kearns for gross misconduct and later informed the court that this behaviour was merely a continuation of a pattern of such incidents which had resulted in him being late for work.  The court agreed that Kearns’ latest non appearance at meetings was the hair that broke the camel’s back and in the circumstances, his dismissal was justifiable.  The decision thus levels the playing field between employers and employers in these situations.

There are measures which employers may decide to take in order to preserve their right to use the ‘last straw’ doctrine.  For example:

  • dealing promptly with regular breaches to avoid inadvertently waiving an employee’s breach
  • investigating and evidencing the conduct thoroughly before dismissing the employee
  • ensuring that staff are clear about the nature and type of conduct which is tolerable in the work place

The above are examples of what may amount to good practice, however, if you need advice about a particular set of circumstances or advice tailored to your particular business, then please contact Alexandra Dean on 01245 228141 or email

This is not legal advice; it is intended to provide information of general interest about current legal issues.