Marshall v McPherson Limited
Marshall v McPherson [2025] EAT 100
Facts
Mr James Marshall (the claimant) was an experienced HGV driver working for McPherson Limited (the respondent), a large haulage company specialising in removing draff (spent grain) from whisky distilleries.
The claimant brought a claim for constructive unfair dismissal under Section 95(1)(c) of the Employment Rights Act 1996.
Since May 2017, the claimant worked under a Contract of Employment, typically 48 hours per week as an HGV driver.
The claimant was assigned as the overnight driver at the Grissan Riverside plant, responsible for taking draff from distilleries and tipping it into the plant's intake hopper, which ran 24 hours a day.
Initially, there were two intakes, allowing drivers to fill one and attend to other duties or take breaks.
In May 2023, the Mill introduced a single intake system, doubling its capacity to 500 tons of draff per day. This new system depleted the hopper much faster, leading to increased pressure on the claimant.
The claimant found it difficult to take breaks and complete his duties due to work pressure, breakdowns, and stoppages, even resorting to manipulating his tachograph to appear as though he had taken scheduled breaks. He informed his line manager of his difficulties, but was told to "do what he could and ‘crack on’," and the issue was not recorded.
On the night of 6th and 7th November 2023, the respondent instructed another driver to accompany the claimant to check his tipping, without forewarning. The claimant was annoyed and decided to leave his position.
After communications, the claimant met with the respondent on 13th November 2023, discussing his current difficulties and two past incidents from 2017: an unintentional exposure to caustic steam and a "near miss" with overhead power lines where lack of risk assessment was highlighted but not pursued by the respondent.
The claimant declined a temporary transfer to a local driving role, stating his complaints continued to be ignored, leading the respondent to inform him he would remain unpaid.
The claimant contacted ACAS on 29th November 2023 for early conciliation and resigned on 20th December 2023, considering it constructive dismissal.
Unknown to the claimant, the respondent had instigated investigations into the 2017 incidents, but findings showed no issues recorded regarding the claimant's concerns by controllers, and the night shift driver (claimant) lacked the flexibility for assistance that the day driver had.
Employment Tribunal (ET) Decision
The Employment Tribunal dismissed Mr Marshall's claim for constructive unfair dismissal.
Appeal to the Employment Appeal Tribunal (EAT):
The claimant appealed the ET's decision on four grounds, with grounds 1-3 being argued:
The ET misdirected itself in its application of the law on constructive dismissal.
The ET erred in holding that the respondent was not in repudiatory breach of contract (a perversity challenge).
The ET took into account irrelevant matters and left out relevant matters (also a perversity challenge).
Held
Ground 1: Misdirection of Law
The EAT found that while the ET initially provided an "impeccable" self-direction on the relevant legal principles, particularly regarding the "last straw" doctrine from Omilaju and Kaur, it applied a different legal test in its crucial decision-making paragraphs (70 and 71).
Specifically, the ET concluded that if a 'last straw' act was "not repudiatory in nature, it will not revive earlier acts". This was deemed a fundamental misdirection as the 'last straw' itself does not need to be a breach of contract; it merely needs to contribute, however slightly, to a cumulative breach of the implied term of trust and confidence.
The EAT highlighted that the ET failed to fully apply the five-stage test from Kaur, particularly the fourth and fifth stages concerning a cumulative course of conduct and resignation in response to that breach.
This error "goes to the heart of the decision" and "undermines confidence in the factual conclusions". The EAT noted that the ET's own finding that a 2017 incident "could possibly alone or with others breach the implied duty of trust and confidence" contradicted its later conclusion of no final straw under a cumulative approach.
Ground 2: Perversity Challenge (Did Not Succeed):
While acknowledging that Ground 2 was "parasitic" on Ground 1, the EAT ruled that the claimant had not met the "high bar" for a perversity appeal. It was not an "overwhelming case" that no reasonable tribunal, on a proper appreciation of the evidence and law, would have reached the same decision. The ET's unsound application of the law (as per Ground 1) did not automatically mean its overall dismissal was perverse.
Ground 3: Irrelevant Matters (Did Not Succeed as Standalone, but Supported Ground 1):
The EAT found this ground lacked merit as a standalone perversity challenge. However, it concluded that the inconsistencies identified (e.g., considering whether the claimant raised a grievance, which related to employee conduct rather than the employer's conduct) "heighten the suspicion" that the ET was not consistently following the correct legal approach, thus supporting the success of Ground 1.
Disposal/Remittal:
Due to the success of Ground 1, the appeal was successful, and the matter had to be remitted for a rehearing.
The EAT determined that it was an "open question" how the ET would have decided the matter if it had directed itself correctly, meaning the EAT could not make its own finding.
The case will be remitted to a freshly constituted Tribunal, not the same one.
This decision, made "with some hesitation," was based on the challenge it would pose for the original tribunal to "disentangle its previous findings" on the "last straw" and reconsider the underlying facts with the correct legal application of Omilaju and Kaur principles.
The EAT clarified there was no suggestion of bias or a totally flawed decision by the original ET, which was considered professional.
