How to Protect the “ The Last Straw” in Constructive Dismissal (when pay or holiday goes wrong)

William Slivinsky
Sep 25
5 min read

This articule is a part of the UDO series: My employer is not paying me — a step-by-step guide to recover wages/holiday pay, follow the ACAS process, and, if needed, prove constructive dismissal or automatically unfair dismissal under ERA s.104 for asserting pay rights (s.13, s.8, s.23–s.24). Use the copy-and-paste templates to demand arrears, rebuild trust, or escalate—fast to employment tribunal.

Note: Even Acas — the body behind the Code—lost a constructive unfair dismissal case in Tracey v ACAS (2023) after months of pay/holiday-pay confusion capped by a final last straw. If the Code’s governor can get pay wrong, any employer can.

This article gives you two practical, copy-and-paste guides you can use today:

Protect the Last Straw — build the clean evidence trail (emails, grievance, “final chance” note) that preserves your rights.
If You Must Resign — short, precise wording that ties your resignation to the breach and last straw while avoiding affirmation.

The last straw in pay, holiday cases - what you’ll learn.

What the “last straw” is (and isn’t) in constructive dismissal
How to build a clean evidence trail around unpaid wages and/or holiday pay
Smart timing: avoiding affirmation and capturing the final trigger
Paste-ready wording for emails, grievances, and resignation lines (if you can’t stay)

Disclaimer (UK): Constructive dismissal is highly fact-sensitive and turns on a multi-part legal test. Do not resign without getting tailored legal advice and a written review of your evidence. This guide is general information, not legal advice, but teaches you practical steps to strengthen your case.

Case snapshot: Tracey v ACAS (2023)

The Tribunal upheld constructive unfair dismissal and holiday-pay claims. Years of muddled records and contradictory payroll messages culminated in a fresh incident—a telephone conversation on 9 February 2022—which the judge accepted could operate as a last straw reviving earlier breaches; Ms Tracey resigned in response. Decision issued 17 March 2023.

Key points to lift into practice

Prolonged failure to provide clear holiday figures and records undermined trust and confidence.
The tribunal accepted that a new event (that phone call) could be the last straw that revived earlier breaches, with resignation in response.

The “last straw”, in one paragraph

A last straw is a new incident that, viewed objectively and in context, contributes to (and can revive) an ongoing fundamental breach—usually of the implied term of trust and confidence. It need not be dramatic; it just can’t be entirely trivial or innocuous. Act promptly after it occurs to avoid affirming the breach (see Kaur v Leeds for Court of Appeal guidance on cumulative breaches and last-straw doctrine).

When the problem is wages or holiday pay

These disputes often feature:

Miscalculated entitlement for part-time/term-time patterns
Contradictory figures (sometimes flipping between “overpaid” and “underpaid”)
Inadequate records and inconclusive grievance handling. A fresh call/email/meeting confirming it’s still not fixed can be your last straw—as in Tracey.

Why raising a grievance (and appeal) matters In pay/holiday disputes ?

A clear paper trail of a formal grievance—and, if available, an internal appeal—strengthens a constructive dismissal case. The Acas Code expects parties to use grievance procedures; tribunals must take the Code into account and can adjust compensation by up to 25% if either side unreasonably fails to comply (s.207A TULRCA). In practice, a short, focused grievance and timely appeal show you tried to resolve the issue internally and help prove the breakdown of trust and confidence if things aren’t fixed.

Guide 1 — Protecting your last straw (step-by-step)

1) Lock the numbers in writing

Send one request to HR/Payroll asking for:(a) entitlement in hours and the calculation method for your pattern; (b) treatment of bank/privilege days; (c) 24-month leave record (screenshots fine); (d) the policy relied on; (e) confirmation of no deduction/clawback unless a specific, worked calculation is given. Repeated failure to answer cleanly helps prove loss of trust. (This mirrors what the tribunal criticised.)

Paste-ready:

Please confirm my annual leave entitlement (in hours) and the calculation used for my [term-time/part-time/ over-time] pattern, including treatment of bank/privilege days. Provide my leave record for the last 24 months and the policy relied on. I need a single, final figure with workings.

If “overpayment” is raised:

Set out the sum, period, and calculation you rely on. I dispute liability pending disclosure. Any deduction without agreement will be unauthorised.

2) Keep the grievance focused

Title: Holiday entitlement & pay — failure to calculate and resolve. Bullet the conflicting figures, missed fixes, what’s still missing, and a deadline for a final figure with workings.

“with workings” means: show me the full calculation, step by step, not just the final number.

3) Capture the fresh trigger

Log the date/time of the new call/email/meeting that shows the issue still isn’t fixed. This is your potential last straw (Tracey’s was a call the day before resignation).

4) Give a short final chance (strategic)

Yesterday’s [call/email/meeting] confirms the ongoing failure to provide a correct, final holiday-pay position. This has undermined trust and confidence. Unless I receive a final figure with workings by [short deadline], I will treat this as a fundamental breach.

Guide 2 — If you must resign, be clear and prompt

Paste-ready:

I resign with immediate effect in response to your fundamental breach: persistent failures to calculate and record my holiday correctly, contradictory information and unresolved grievance—culminating in a last straw on [date].

Acting quickly helps avoid arguments that you affirmed the contract; the Tracey judgment discusses timing and the last-straw analysis.

Evidence checklist

Email chain: requests, conflicting figures, missed deadlines
HR system screenshots of leave/holiday records
Grievance + minutes/outcomes/appeal
Resignation referring to breach + last straw
Your spreadsheet showing method + arrears (attach workings)

Why this framing works

The tribunal found that prolonged uncertainty, poor records and shifting answers destroyed trust, and accepted that a fresh conversation could be the last straw reviving earlier breaches. Resignation “in response to the breaches/last straw” satisfied constructive dismissal.

Important (read this before you act)

Constructive dismissal is a tied, multi-part test (fundamental breach; resignation because of that breach; no affirmation; prompt timing). Before any step—especially resignation—seek tailored legal advice and a documented analysis of your evidence (contracts, payroll, holiday calculations, emails, grievance papers, call notes). This article is general guidance only and not legal advice. For time limits, remember 3 months minus 1 day (subject to Acas Early Conciliation rules), and check the latest Acas guidance.

Ask your question below (I read and reply)

Stuck in a similar holiday/pay maze? Drop a question in the comments. To get a useful answer, include (briefly): your work pattern (full/part-time/term-time), when the issue began, what records/policies you’ve been given, and what you’ve already asked for in writing. No names or employer details—keep it anonymous.