Constructive dismissal: affirmation and the â€œlast strawâ€ doctrine
Tuesday 5th June 2018
In Kaur v Leeds Teaching Hospitals NHS Trust, the CA confirmed that where an employee resigns following a “last straw”, the employee can rely on the employer’s previous acts notwithstanding any prior affirmation, provided the later act forms part of a series.
Ms Kaur was employed as a nurse until August 2014, when she resigned following the conclusion of disciplinary proceedings concerning an altercation with a colleague over a year earlier. She brought a claim for constructive unfair dismissal, arguing that her failed appeal constituted the last strawin a series of acts dating back to 2010.
In a preliminary hearing, the ET struck her claim out. The ET considered that it was reasonable for the Trust to initiate an investigation and subsequent disciplinary proceedings following the altercation.
The ET found that the disciplinary proceedings, including the appeal, had been properly conducted, meaning Ms Kaur could not establish a last straw capable of contributing to a cumulative fundamental breach of contract. The ET also held that Ms Kaur was not able to “reactivate” historic concerns because she disagreed with outcome of the disciplinary proceedings. There was no reasonable prospect of arguing that Ms Kaur had done anything other than affirm or waive any prior breach, having not resigned earlier. The EAT upheld the ET’s decision and Ms Kaur appealed to the CA.
The CA agreed the disciplinary process had been carried out fairly and that while the last straw does not have to amount to a fundamental breach, it must contribute something to the cumulative effect of a series of acts which do establish such a breach. The CA considered that there was nothing in the Trust’s conduct which could objectively be said to have contributed to or seriously damaged or destroyed the relationship of trust and confidence.
However, the CA did hold that if the disciplinary process had been the last straw, Ms Kaur could rely on prior acts. Where there is a continuing cumulative breach, an employee is entitled to rely on an employer’s previous acts notwithstanding the lapse of time or prior affirmation, provided that there is a later act which forms part of the series. The CA considered that requiring an employee to object at the first possible moment or lose the right to ever rely on all prior conduct would be “unfair and unworkable”.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.