Employers should note that, even where an employee seems to have ‘moved on’ from complaints that a series of acts by the employer cumulatively amounted to a breach of trust and confidence, a further act could revive the employee’s right to resign and claim constructive dismissal.

It is well established that an employee can claim constructive dismissal (in the form of a wrongful dismissal claim and, if they have sufficient service, unfair dismissal) where the employer acts in breach of the implied duty of trust and confidence. This occurs where the employer, without reasonable and proper cause, acts in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. The employee can rely on a single, sufficiently serious incident, or a series of acts which cumulatively amount to a breach of the duty. It is clear that, in the former case, the employee must resign promptly in response to the breach or otherwise will be deemed to have affirmed the contract.

What is less clear is whether the same applies to a cumulative breach case. The EAT in Vairea v Redd Business Information Ltd considered that it does. It ruled that, once the series of acts have amounted cumulatively to a breach of the implied duty, the employee must elect whether to resign promptly after the ‘last straw’. If they choose not to resign, they will be deemed to have affirmed the contract, in effect wiping the employer’s slate clean. Any future act by the employer cannot be a second ‘last straw’ reviving the right to resign in reliance on a series including the earlier acts.

The Court of Appeal in the recent case of Kaur v Leeds Teaching Hospitals NHS Trust has disagreed. It has confirmed that an employee can still resign and claim constructive dismissal in response to a contributing act in the series which occurs after an earlier affirmation. The new ‘last straw’ (which must not be innocuous or trivial and must contribute to the cumulative breach) revives the right to elect to terminate the contract. It does not matter that the acts amounted to a breach of the implied duty at an earlier stage, at which the employee chose not to resign.

The Court also noted that exercising a right of appeal against what is said to be a seriously unfair disciplinary decision is not likely to be treated as an unequivocal affirmation of the contract; and, even if it were, its upholding on appeal would revive the employee’s right to resign. However, on the facts of the case, the employer’s actions in pursuing disciplinary proceedings and imposing a final warning were found to be entirely proper and therefore could not constitute a breach of trust and confidence.

Correspondingly, an employer can theoretically rely on a series of misconduct issues to justify a summary dismissal where these are sufficiently serious cumulatively to undermine the relationship of trust and confidence, even if individually none amount to gross misconduct.

In Mbubaegbu v Homerton University Hospital, a series of breaches of internal reporting procedures by a consultant indicated non-compliant behaviour and a lack of capacity for change that would put patient safety at risk. In these circumstances the EAT agreed that the employee’s cumulative behaviour breached the implied duty of trust and confidence and made summary dismissal a reasonable response, notwithstanding that there was no single act of gross misconduct.

The public safety angle was clearly relevant to this decision. Employers in less safety-critical sectors may find it harder to persuade a tribunal that a series of acts of misconduct are sufficiently serious to amount to a breach of trust and confidence justifying dismissal without prior warnings.