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Constructive unfair dismissal: what amounts to the final straw?

22 June 2018

The recent case of Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ978 has considered the impact of a “final straw” on a claim of constructive unfair dismissal.

An employee is able to bring a claim of constructive unfair dismissal where he or she terminates their own employment in response to their employer’s repudiatory breach of the contract of employment.

It is an implied term of every contract of employment that an employer “shall not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy of seriously damage the relationship of trust and confidence between employer and employee". The courts have determined that any breach of the implied term of trust and confidence shall be a repudiatory breach of contract.

For a claim of constructive unfair dismissal to succeed, an employee must demonstrate that objectively their employer has committed a repudiatory breach. The courts have also found that a relatively minor act can be a repudiatory breach if it is the last straw in a series of incidents.

The case of Kaur involved an NHS employee, who had previously been subject to performance management processes under which she had sufficiently improved. Ms Kaur was then involved in an altercation in April 2013 with a colleague, following which she submitted a Dignity at Work complaint to her employer. The investigation was protracted for many reasons, including Ms Kaur’s maternity leave, and eventually it was determined that Ms Kaur and her colleague should both be subject to disciplinary action. As a result of that, both employees were issued with a final written warning.

The day after receiving her final written warning in July 2014 (some 15 months after the altercation), Ms Kaur terminated her employment, stating that she was “left with no choice but to resign in light of the fundamental breach of contract and fundamental breach of trust and confidence”. She referred to the altercation in April 2013 as the final straw.

The Court of Appeal in Kaur summarised the law relating to “final straw” constructive unfair dismissal cases 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 trust and confidence?

5.Did the employee resign in response (or partly in response to that breach)?

In the case of Ms Kaur, the April 2013 altercation would have been out of time to consider as the final straw. As she resigned the day after her final written warning was imposed, the Court of Appeal considered whether that could be enough to be the “final straw”. The Court held that the NHS Trust acted reasonably in issuing Ms Kaur with that warning. In so finding, the Court noted that a disciplinary “process, properly followed, or its outcome, cannot constitute a repudiatory breach of contract, or contribute to a series of acts which cumulatively contribute to such a breach".

Therefore, as there was no final straw, Ms Kaur’s claim of constructive unfair dismissal was struck out.

Employment | Rebecca Berry

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