The Court of Appeal has considered the issue of the "last straw" doctrine in breach of contract cases in Kaur v Leeds Teaching Hospital NHS Trust. It concluded that an employee is entitled to rely on the totality of the employer's acts where there is a continuing cumulative breach of contract even when there is a prior affirmation of the contract by the employee.
Ms Kaur was employed by the Trust as a nurse. On 22 April 2013 she was involved in an argument with a colleague in which both claimed that they had been assaulted by the other. Ms Kaur raised a grievance over the matter and the Trust investigated the incident and concluded that disciplinary proceedings should be commenced against both Ms Kaur and her colleague, and that the disciplinary panel would also deal with Ms Kaur's grievance. The disciplinary panel concluded that both employees should be given final written warnings for inappropriate behaviour (they had been shouting at each other in close proximity to an area where patients were being treated). Ms Kaur appealed, and then resigned following the rejection of her appeal. She then brought an employment tribunal claim against the Trust for constructive unfair dismissal, arguing that the rejection of her appeal was the last straw in a series of acts which, all taken together, amounted to a breach of the implied term of trust and confidence.
An employment judge allowed the Trust's application to strike out the claim. He found that the disciplinary process and its outcome were unarguably reasonable, and he did not see that Ms Kaur had any reasonable prospect of success in establishing a last straw in relation to the conduct of the appeal hearing. The Employment Appeal Tribunal (EAT) agreed that the employment judge had been entitled to reach the conclusions that he did.
The Court of Appeal also held that the employment judge had directed himself correctly by asking whether there was anything in the Trust's conduct after the incident on 22 April 2013 which could form part of a cumulative breach. The judge had found that a proper disciplinary process had been followed through, and this could not destroy or seriously damage the relationship of trust and confidence between employer and employee.
The Court considered the "last straw" doctrine. For an employee to rely on a final act as a repudiation of the contract it should be an act in a series of acts whose cumulative effect is to amount to a breach of the implied term of trust and confidence. The last straw has to be capable of contributing something to the series of earlier acts. If the employee resigns in response then they can still rely on the totality of the conduct in order to establish that the implied term of trust and confidence has been breached. An employee's failure to object at the first moment that the conduct reached the threshold for breaching the implied term could not mean that they lost the right ever to rely on all conduct up to that point. To hold this would be unfair and unworkable.
Take note: This decision is a useful reminder that an employee does not have to resign and claim constructive dismissal as soon as there is a potential breach of the implied term of trust and confidence. If the conduct is followed by a further act or acts the employee can still rely on the totality of that conduct in order to bring a claim.
This article is taken from HR Law - May 2018.
