Last straw may give right to terminate despite affirmation of previous conduct

Last straw may give right to terminate despite affirmation of previous conduct

The recent Court of Appeal case of Kaur v Leeds Teaching Hospitals NHS Trust provides some helpful guidance on constructive unfair dismissal claims. In particular, the Court has held that an employee can resign and claim constructive unfair dismissal following a final act (known as the last straw) and rely on the whole of their employer’s conduct, even where the employee has previously affirmed the contract.

In circumstances where an employer commits a fundamental breach of contract, an employee may resign and claim constructive unfair dismissal.  The breach may be a one-off incident or a series of acts which may not be fundamental in their own right but taken together could constitute a fundamental breach of contract.  The last act in the series is known as the ‘last straw’.

In this particular case, the employee sought to rely on the ‘last straw’ doctrine.  However, the Court of Appeal held that the last act relied on as the ‘last straw’ did not form part of a cumulative breach so the appeal failed.  The Court of Appeal set out some useful questions for Tribunals to consider in such cases.

Facts

The Appellant, Ms Kaur, was employed as a nurse.  In April 2013, there was an altercation between Ms Kaur and a healthcare assistant.  The Trust commenced disciplinary proceedings and Ms Kaur was given a final written warning for “inappropriate behaviour”.  Ms Kaur appealed the decision but her appeal was dismissed.  Ms Kaur resigned the following day and later claimed constructive unfair dismissal.   

At first instance, Ms Kaur’s claim was struck out as it had no reasonable prospect of success.  Ms Kaur claimed that her employer’s handling and outcome of its disciplinary process was unreasonable such that it amounted to a breach of the implied term of mutual trust and confidence.  The Tribunal held that the Claimant could not establish that the conduct and decision of the appeal hearing was a fundamental breach of conduct or the ‘last straw’.  Ms Kaur also sought to rely on the incident that took place in April 2013 but this claim failed as she had remained in employment for over a year following the incident, thereby affirming the breach.  Ms Kaur appealed to the EAT but her appeal was rejected.  Ms Kaur appealed to the Court of Appeal which took this opportunity to review the operation of the ‘last straw’ doctrine.  

Decision

The Court of Appeal decided that the concept of affirming a breach is not strictly relevant in ‘last straw’ cases.  In the case of a ‘last straw’ resignation all that is required is for there to be a series of events that amount to a fundamental breach of contract.  This means that further acts effectively revive the employee’s right to rely upon the whole series of acts, notwithstanding any prior affirmation.   If the employee resigns promptly following the last event in the series of incidents then the employee can rely on the ‘last straw’ doctrine.

The judgment helpfully outlined five key questions for Tribunals to consider when looking at ‘last straw’ claims:

  1. What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, the employee’s resignation?
  2. Has the employee 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 employee’s contract by showing that all trust and confidence had been destroyed? If it was, there is no need for any separate consideration of a possible previous affirmation.
  5. Did the employee resign in response (or partly in response) to that breach?

Comment

Employers should be aware that it is possible to revive a previously affirmed breach in cases of constructive unfair dismissal.  In such circumstances, where there is a new act (that may not be fundamental in itself), an employee may be able to resign claiming constructive unfair dismissal and rely on the totality of the employer’s conduct.

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