Kaur Blimey!

4th September 2018 Employment

In Kaur v Leeds Teaching Hospitals NHS Trust the Court of Appeal has held that when an employee resigns in response to a so-called 'last straw' act by their employer, they are entitled to rely on the totality of the employer's acts in a constructive dismissal claim, even if they have previously affirmed the contract.

In order to claim constructive dismissal, an employee must resign in response to their employer's conduct. The employee must also show that the conduct was so serious as to be a fundamental breach of their employment contract (known as a repudiatory breach). If this can be proven, then the employee will be considered constructively dismissed.

The employer's conduct does not have to be a one-off if the employee can show a pattern of conduct, culminating in a 'last straw' that prompted the resignation, this will also result in constructive dismissal.

In this case, Ms Kaur was employed by the Trust as a nurse. In April 2013, she was subjected to disciplinary procedures, which eventually resulted in a final written warning. After her appeal was rejected in July 2014, she resigned and claimed constructive dismissal.

Ms Kaur alleged that the rejection of her appeal was the 'last straw' in a pattern of conduct towards her by the Trust, which breached the implied term of trust and confidence in her employment contract. Breach of the implied term of trust and confidence is widely used in constructive dismissal claims, as it is always a repudiatory breach, if proven.

At first instance, the Employment Tribunal struck out the claim on the grounds that it had no reasonable prospects of success, a decision which was upheld by the EAT. Undeterred, Ms Kaur then took her claim to the Court of Appeal.

The Court of Appeal firstly reviewed the 'last straw' doctrine, in order to ascertain whether the lower court had correctly applied the law. Recent case law had suggested that, should an employer's conduct breach the implied term, if the employee then chooses to affirm the contract, rather than resigning, they could not then rely on any conduct before that point, should they later claim for constructive dismissal.

The CoA rejected this approach. They argued that if this approach were applied, an employee would have to resign at the first moment that their employer's conduct reached the threshold for breaching the implied term. This would be unworkable, as there is no black and white definition for what does and does not breach the implied term and an employee would likely never know unless testing the matter in a Tribunal. The Court affirmed that even if an employee affirms their contract, if the employer continues the conduct that first led to the breach, the employee will be entitled to rely on the totality of the conduct in a Tribunal claim.

Although the decision to strike out Ms Kaur's claim was upheld by the CoA, the clarification of the 'last straw' principle provided in this case is useful, as this is an area that has recently produced contradictory case law. The decision also confirmed that an employer properly following its disciplinary process and/or the outcome of such a process, cannot amount to, or contribute to, a repudiatory breach of contract, which will be welcome news to employers.

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Paul Chamberlain is a Partner and Head of Department located in Manchesterin our Employment department

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