Constructive unfair dismissal – Marshall v. McPherson Ltd

25 September 2025

The Employment Appeal Tribunal has provided a clear and helpful summary of the test to be applied in final straw constructive dismissal claims, reminding employers that whatever prompts a resignation does not in itself need to be a repudiatory breach of contract; if the broader context and history of the employer’s conduct is sufficiently serious to amount to a repudiatory breach of contract giving rise to constructive dismissal.

The relevant five-stage test is as follows:

1. What was the employer’s most recent act or omission said to have triggered resignation?
2. Has the employee affirmed the contract since that act?
3. If not, was that act or omission alone a repudiatory breach of contract?
4. If not, was it part of a course of conduct which, when viewed cumulatively, amounted to a repudiatory breach?
5. Did the employee resign in response to that breach?

The court noted that these questions are not always easy to apply, but the key principle is that a resignation in response to a seemingly trivial incident may still justify a claim if it comes against the backdrop of a wider pattern of unacceptable treatment. Employers are therefore cautioned that persistent or cumulative misconduct, even where individual events appear minor, can ultimately give rise to liability for constructive dismissal.

Our employment law specialists can help you review workplace practices, address employee concerns, and ensure your policies reduce the risk of claims. Contact Backhouse Jones today for expert advice on managing employee relations and avoiding costly disputes.

This article was written by Gabrielle Scriven.