A “last straw” event may be capable of reviving a dormant constructive dismissal complaint

In the case of Kaur v Leeds Teaching Hospitals NHS Trust [2018], the Court of Appeal had to decide two issues. Firstly, did the employment judge correctly apply the law in relation to constructive dismissal and in particular the principle of the “last straw” and secondly, whether it was right for the tribunal judge to rule that the employee’s case had no reasonable prospect of success. In respect of these issues, the Court of Appeal found in favour of the employer and dismissed the employees appeal.

The background leading to the appeal

Kaur worked as nurse and complained that her employer, the NHS Trust, had unjustifiably criticised her performance and placed her on a formal capability process in 2010.  Despite successfully passing this process in 2012, Kaur considered that the experience badly dented her self-confidence and working relationships with colleagues. She also intimated that she felt bullied.  During April 2013, an altercation took place between Kaur (who was pregnant at the time) and Ms Luckaine, where each alleged they suffered an assault by the other.  After the altercation Kaur raised a grievance and then remained at home on sickness absence.

The Trust investigated the incident and following disciplinary proceedings both Kaur and Luckaine received final written warnings (the respective issues of assault being inconclusive). Shortly after receiving the warning Kaur commenced a period of maternity leave. She appealed against the disciplinary decision but because of the birth of her child, the appeal was not progressed swiftly. After a significant lapse in time, the Trust decided to reject the appeal. Kaur received an email informing her of the outcome on 16 July 2014.  The following day, in response to the email, she resigned on the basis that the appeal outcome was “the last straw”.  Notably, in her letter of resignation she stated that the Trust decision was a “…fundamental breach of contract and a fundamental breach of trust and confidence.”

What is the “last straw” principle? 

The last straw principle has its origins in the old proverb “it is the last straw that breaks the camel’s back”. In an employment law context, put quite simply, it means the last action in a series of acts or incidents by the employer (or any of its employees) which results in a fundamental breach (repudiatory breach) of the contractual relationship between the employer and the employee. The series of incidents complained of, when looked at in isolation, may seem quite trivial but cumulatively they have the effect of amounting to a repudiatory breach of the implied term of trust and confidence. 

Notably, in the present case it was held that the “… essential quality [of a last straw] is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.” In other words, the last straw itself may when looked at on its own be relatively insignificant, but to be relied on it must be more than trivial.

What happened at the Tribunal stages?

Both the Employment Tribunal and Employment Appeal Tribunal judges held that no breach of contract in itself arose from the Trust’s conduct of either the disciplinary or subsequent appeal hearing in relation to Kaur’s behaviour.
On this basis, each also held that Kaur had no reasonable prospect of establishing that a last straw incident arose from the outcome of the appeal hearing.

Can an employee rely on a previously affirmed repudiatory breach? 

Here the Court of Appeal held that when a tribunal considers if an employer's series of acts (including the final act) amounts to a repudiatory breach of contract, it should not normally matter whether the employee could have resigned at an earlier stage. If the employee has affirmed the contract by not resigning at an earlier stage, the effect of the final act, (if more than trivial) will revive the employee’s right to resign in response to a series of acts.

In the case of Kaur, the last straw she sought to rely on was so trivial that it was held there was no reasonable prospect of it being viewed as a last straw.

What did the Court of Appeal say about the legal test for constructive dismissal?

Helpfully, the Court of Appeal set down questions for future tribunals to follow when determining if an employer has constructively dismissed an employee:

“(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 trust and confidence]? (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?"

What can employers take away from this?

This case was a good result for employers. A key nugget to take away from the case is that there is always a slight risk that a disgruntled employee, who had previously accepted and affirmed a repudiatory breach, may at a later date attempt to raise a last straw in a series of incidents argument.

On a final note, the Trust was also able to recover their legal costs in defending this claim.

If you would like to know more about constructive dismissal or you need advice on how to handle a grievance procedure, contact our lawyers at Markel Law to discuss how we can meet your needs.