In Kaur v Leeds Teaching Hospitals NHS Trust, the Court of Appeal reviewed the so-called "last straw" principle in constructive dismissal claims.
The "last straw" doctrine applies where a claimant resigns in response to a series of breaches of contract or a course of conduct by their employer which, taken cumulatively, amounts to a breach of the implied term of trust and confidence.
In this case, the Court of Appeal confirmed that a "last straw" act which is not a fundamental breach of contract in itself, can, in some circumstances, revive an employee's right to resign even where considerable time has gone by and the employee might have affirmed the contract by continuing to work for the employer.
Ms Kaur was a nurse working for Leeds Teaching Hospitals NHS Trust. She was subject to disciplinary proceedings following an altercation with another employee. She received a final written warning. Her appeal against this sanction was dismissed and she resigned the following day.
Ms Kaur brought a claim for constructive unfair dismissal to an employment tribunal. She argued that a series of events, including complaints about her performance, the altercation with another member of staff, the conduct of the disciplinary proceedings and the appeal proceedings were cumulatively a breach of the implied term of mutual trust and confidence. The handling of the disciplinary and appeal processes was, she claimed, the "last straw" entitling her to resign.
The employment tribunal struck out her claim at a preliminary hearing as having no reasonable prospect of success. The tribunal did not hear any oral evidence but considered documentary evidence of the disciplinary investigation, disciplinary hearing and appeal proceedings. The claimant appealed to the EAT. The appeal was rejected at the sift stage and then dismissed at an oral rule 3(10) hearing.
The Court of Appeal agreed and clarified the questions a tribunal should address when considering a constructive dismissal claim as follows:
1. What was the most recent act or omission on the part of the employer which the employee says caused or triggered his or her resignation?
2. Has he or she affirmed the contract since that act?
3. If not, was that act or omission by itself a repudiatory breach of contract?
4. If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of mutual trust and confidence?
5. Did the employee resign in response (or partly in response) to that breach?
The Court of Appeal held that the employment judge was entitled to be satisfied that there was no reasonable prospect of the claimant showing that the employer's handling of the disciplinary and appeal processes could form the "last straw" in a cumulative breach. The tribunal found that the processes had been properly handled. The so-called "last straw" act was therefore "innocuous" and could not together with previous acts constitute a repudiatory breach of contract (following London Borough of Waltham Forest v Omilaju [2004] EWCA Civ 1493, [2005] ICR 481).
The Court of Appeal clarified that there is no need for any separate consideration of a possible previous affirmation of the contract because the "last straw" can revive the right to resign. It was not relevant to the decision that Ms Kaur had continued to be employed for 15 months following her initial concerns raised under the Dignity at Work Policy.
It is relatively rare for an employment tribunal to strike out a claim where there is a dispute about primary facts. This is because in many cases it is difficult to conclude that there are no reasonable prospects of success without hearing oral evidence. However in this case, the employment judge was satisfied that the disciplinary process had been properly followed and could not be the "last straw" in a series of acts capable of breaching the employment contract.
Employers should be aware that it is possible for an employee to claim that an act or omission by the employer is in effect a dismissal because it is linked to former acts or omissions. For example, a non-compliant grievance or disciplinary appeal process could be the "last straw" grounding a constructive dismissal claim.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
