An employment contract will contain both express terms (those written into the contract) and implied terms (those not written but are imputed by law). Among the most important implied terms in an employment contract is the employers’ duty of trust and confidence owed to their employees. Employers may not, without proper cause, breach that duty. Any breach of this duty is considered a breach of the employment contract, which entitles the employee to resign and pursue a claim for constructive dismissal.
An employee is also entitled to claim for constructive dismissal for a series of individual acts, which together are considered to be a breach of contract. The last of these acts of the employer is considered to be the “last straw” which caused the employee to resign.
It is important to note that any act done by the employer which breaches an employment contract can be affirmed by the employee. Once a breach has been affirmed, a claim cannot be pursued for that breach.
The question for the Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust  EWCA Civ 978 was whether the effect of the final act of the employer, the last straw, was enough for an employee to resign and pursue a claim for constructive dismissal based on the cumulative effect of the various breaches.
Ms Kaur was employed as a nurse and was found guilty of inappropriate conduct as a result of an altercation with a colleague, following disciplinary proceedings. She was given a final written warning. She appealed her employer’s decision, which was dismissed, and resigned. Ms Kaur subsequently commenced a claim for constructive unfair dismissal stating, among other causes, that the conduct of the disciplinary and appeal hearings amounted to a breach of the implied term of trust and confidence.
The tribunal struck out Ms Kaur’s claim on the basis that there was no reasonable prospect of establishing that the conduct of the disciplinary and appeal hearings amounted to a breach of contract, or that this was a relevant “last straw” which allowed a claim to be brought for previous breaches. Ms Kaur also had no reasonable prospect of establishing that the altercation with her colleague was the last straw, given that she had remained in employment for a number of months following the incident, thereby affirming any possible breach of contract.
The Employment Appeals Tribunal upheld the decision and Ms Kaur appealed to the Court of Appeal.
The Court confirmed that, where the employer’s conduct had breached the implied term of trust and confidence and the employee had affirmed this conduct, but subsequent breaches were then committed, the employee could pursue a claim for constructive dismissal based on the cumulative effect of these breaches.
It was also confirmed that there is no requirement for the act being the last straw to be a breach of contract, provided that the employer’s conduct as a whole can be deemed to be a breach.
The Court then set five questions that should be asked to determine whether an employee was constructively dismissed on the basis of a last straw:
- Was the most recent act or omission on the part of the employer, which the employee says caused their resignation?
- Has the employee affirmed the contract since that act?
- If not, was that act or omission by itself a repudiatory breach?
- If not, was it nevertheless a part of a course of conduct comprising of several acts or omissions which, viewed cumulatively, amounted to a repudiatory breach of implied term of trust and confidence?
- Did the employee resign in response (or partly in response) to that breach?
The Court upheld the tribunal’s decision to strike out Ms Kaur’s claim on the grounds it had no reasonable prospect of showing that the conduct of the disciplinary and appeal process could form the last straw as that process was entirely proper.
The Court also provided useful guidance on the last straw principle, setting the five questions noted above that should be considered in each case.