Disciplinary Process Was Not A 'Last Straw' Entitling The Employee To Resign And Claim Constructive Dismissal

In Kaur v Leeds Teaching Hospitals NHS Trust, the Court of Appeal reviewed the so-called "last straw" principle in constructive dismissal claims.

The "last straw" doctrine applies where a claimant resigns in response to a series of breaches of contract or a course of conduct by their employer which, taken cumulatively, amounts to a breach of the implied term of trust and confidence.

In this case, the Court of Appeal confirmed that a "last straw" act which is not a fundamental breach of contract in itself, can, in some circumstances, revive an employee's right to resign even where considerable time has gone by and the employee might have affirmed the contract by continuing to work for the employer.

Ms Kaur was a nurse working for Leeds Teaching Hospitals NHS Trust. She was subject to disciplinary proceedings following an altercation with another employee. She received a final written warning. Her appeal against this sanction was dismissed and she resigned the following day.

Ms Kaur brought a claim for constructive unfair dismissal to an employment tribunal. She argued that a series of events, including complaints about her performance, the altercation with another member of staff, the conduct of the disciplinary proceedings and the appeal proceedings were cumulatively a breach of the implied term of mutual trust and confidence. The handling of the disciplinary and appeal processes was, she claimed, the "last straw" entitling her to resign.

The employment tribunal struck out her claim at a preliminary hearing as having no reasonable prospect of success. The tribunal did not hear any oral evidence but considered documentary evidence of the disciplinary investigation, disciplinary hearing and appeal proceedings. The claimant appealed to the EAT. The appeal was rejected at the sift stage and then dismissed at an oral rule 3(10) hearing.

The Court of Appeal agreed and clarified the questions a tribunal should address when considering a constructive dismissal claim 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 the implied term of mutual trust and...