An appeal by an HGV driver against his dismissal by a haulage company based in Aberlour has succeeded before the Employment Appeal Tribunal after it found that the Employment Tribunal had erred in its approach to the law of constructive dismissal.

Claimant and appellant James Marshall brought a claim for constructive unfair dismissal against his employer McPherson Ltd which was dismissed after the ET found that there was no last straw leading to the claimant’s resignation. On appeal, he argued that the ET had misdirected itself as to the law and erred in holding that the respondent was not in repudiatory breach of contract.

The appeal was heard by Lady Haldane, with Laurence Cunningham appearing for the claimant and Kenneth McGuire for the respondent.

Told to crack on

Much of the respondent’s business involved the removal of draff (spent grain) from the sites of Speyside whisky distillers, to be used either as cattle feed or to be turned into biomethane at plants including the Grissan Riverside Mill in Dufftown. The claimant worked as an overnight driver taking draff and loading it into a hopper at the Mill to allow for a 24-hour continuous feed of draff to the plant.

In about May 2023, the Mill replaced its intake system, with the result that the capacity of the Mill doubled to 500 tons of draff per day. The new system took less time to deplete the hopper than the old system, which resulted in the claimant encountering difficulties with taking breaks and completing his...

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