Employment Law Digest August 2025 – Case Law Update

Constructive dismissal and the “final straw”

In Marshall v McPherson Limited, Mr Marshall was an experienced HGV driver, working night shifts for McPherson Limited, a large haulage company. Much of their work was with local whisky distillers in Speyside.

• The claimant’s tasks were to take draff (spent grain) from distilleries to a plant and tip it into the intake hopper, which operated 24-hours a day.
• When he first began work at the plant there were 2 intakes each with their own hopper. It was possible to fill up one hopper and tend to other duties such as driving to a distillery to collect a load of draff or take a break as it would take approximately 20 minutes for the largest hopper to empty before needing refilled.
• In May 2023, the plant introduced a single intake system to replace the old system. Its capacity doubled to 500 tons of draff per day. The new system took less time to deplete the hopper. If the hopper became empty, the process would come to a halt.
• The claimant felt under pressure. The pressure of work coupled with breakdowns and stoppages at the plant caused a build-up of untipped draff. The claimant found it difficult to take breaks and complete his duties. He resorted to manipulating the tachograph in his lorry to make it seem as though he had, in fact, taken scheduled breaks.
• He often had difficulty completing all of the tipping expected of him because of pressure of work. He told his line manager he was having difficulty taking breaks during his shift but was told to do what he could and ‘crack on’.
• On 6 and 7 November 2023 the claimant was working a night shift. The respondent instructed another driver to accompany the claimant during the shift, check if the draff was being tipped properly, and report back. The claimant was given no forewarning of this. He was annoyed. He was experienced and had done this work for many years without criticism of his abilities. At the end of that shift, the claimant had had enough. He decided he wanted to leave his position. Following communication with the respondent’s Operations Manager, the claimant was asked to attend a meeting on 13 November 2023 to discuss matters.
• Among the matters discussed were two incidents that had occurred in 2017 and the current difficulties working at the plant, including difficulties taking breaks. After the meeting, the manager emailed the claimant to tell him he had allocated him to a local driving role.
• The claimant declined the transfer and said that he felt that his complaints (both past and present) continued to be ignored. The claimant was told, among other things, that as he was refusing the temporary move, he would remain unpaid.
• The Claimant requested details of the employer’s investigations into his concerns and absences. He also referred to two incidents in 2017, one when he had been exposed to caustic steam and a ‘near miss’ involving overhead power lines, raising concern about the lack of a risk assessment.
• The claimant contacted ACAS on 29 November to commence early conciliation.
• Unbeknown to the claimant, the manager had instigated investigations into the 2017 incidents but found that no issue had been put on record at the time in relation to the claimant’s concerns.
• The manager met with the day driver, and asked about difficulties taking breaks. He explained he could get assistance from another driver who would tip the load for him. This allowed him time for a break. The night shift driver did not have that flexibility in getting other drivers to tip the loads. On 20 December 2023, the claimant resigned, saying that he considered this as constructive dismissal.

Mr Marshall’s constructive dismissal claim – that his employer had breached the implied term of trust and confidence entitling him to resign – was dismissed by the Employment Tribunal (ET).

The ET found that the 2017 incidents amounted to breaches by the employer that would have entitled Mr Marshall to resign but that the more recent checking up on his work and the handling of his concerns were not repudiatory breaches. There was no “final straw” capable of reviving the 2017 breaches by the employer entitling Mr Marshall to resign.

Mr Marshall successfully appealed to the Employment Appeal Tribunal (EAT).

• The EAT found that the ET had correctly identified the proper approach to be taken but failed to apply all stages of the relevant test, when considering the ‘final straw’ which had led to Mr Marshall’s resignation.
• In particular it had not considered whether the employer’s actions were part of a course of conduct which, viewed cumulatively, amounted to a repudiatory breach of the duty of trust and confidence. The final straw itself need not be a serious breach of contract. The question is, does the cumulative series of acts taken together amount to a breach of the implied term.
• The claim was sent back to the ET for a rehearing.

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Direct race discrimination

In Leicester City Council v Parmar:

• Mrs Parmar’s claim was that the Council had discriminated against her on the grounds of her race. She listed five acts by which, she said, the Council had unlawfully discriminated against her because of her race.
• Those five acts were that the Council:
  • made false allegations against her in January 2012,
  • transferred her from her role as Head of Service,
  • started a disciplinary investigation against her on or around that date,
  • required her to go to several disciplinary investigation meetings only to tell her that there was no case to answer, and
  • did not consider lesser and more proportionate ways of dealing with the allegations against her, such as mediation.
• Mrs Parmar believed that two white heads of service, AE and HM, ‘were and would not have been treated’ in the same way by the Council.
• The Council rejected Mrs Parmar’s claim. It said, among other things, that in 2015, a head of service in the same division had been disciplined for their conduct during a redundancy process, and had ‘fully accepted their wrongdoing from the outset of the investigation’. Further, a team manager was disciplined in 2018, but the process was instigated by a different manager. The race of these managers had ‘nothing whatsoever to do with the decision to discipline them’.

While she was still employed, Mrs Parmar brought a discrimination claim against the Council in the Employment Tribunal (‘the ET’). The unanimous decision of the ET was that the Council had discriminated against Mrs Parmar ‘by reason of her race’.

The Council appealed to the Employment Appeal Tribunal (EAT). The EAT dismissed the Council’s appeal, agreeing with the ET that the facts supported an inference of discrimination, with the burden of proof passing to the Council to show a non-discriminatory reason for the treatment, which it had not been able to do.

The Council appealed to the Court of Appeal (CA). The appeal was dismissed:

• The ET had not made an error in law in concluding that the circumstances of the evidential comparators were sufficiently similar to those of Mrs Parmar to mean that their different treatment by the Council supported an inference of discrimination.
• An ET is entitled to draw an inference from disclosure failures by the Council whether or not different individuals were directly or indirectly responsible for it.