Kaur v Leeds Teaching Hospitals NHS Trust (Court of Appeal)
The Court of Appeal has clarified the position in relation to cases of 'last straw' constructive unfair dismissal, confirming that further contributory acts by an employer revive an employee's right to resign even after they have affirmed their employer's previous breach of contract.
The employee was subject to disciplinary proceedings following an altercation with a colleague. She was issued with a final written warning for inappropriate behaviour and her subsequent appeal against this sanction was dismissed. She resigned in response the next day, claiming that the rejection of her appeal amounted to the last straw in a series of events which, taken cumulatively, breached the implied duty of mutual trust and confidence. Her employer argued that since she had continued to work following the earlier incidents she cited (which included alleged unjustified comments regarding her performance and the aforementioned altercation) she had affirmed any possible earlier breach and could not, for the purposes of a constructive dismissal claim, invoke them as part of the relevant chain of events culminating with the appeal outcome.
The Tribunal rejected her claim on the basis that the relevant disciplinary and appeal decisions had been reached in accordance with a fair process and could not therefore contribute to the repudiation of her employment contract. The EAT and CA agreed, but the latter wished to stress that even where an employee affirms repudiatory breaches caused by earlier employer conduct (e.g. by continuing to work as normal) further damaging acts on the part of the employer at a later date can revive a potential constructive dismissal claim, taking the full chain of events into account.
This is a somewhat surprising outcome but confirms to employers that earlier incidents of breach, which an employee may have been thought to have affirmed, should not be discounted for the purposes of assessing potential constructive dismissal claims. The Court provided a useful checklist of questions to be considered in such cases: (1) What was the employer's most recent act/omission which the employee says triggered their resignation? (2) Has the employee affirmed the contract since that act? (3) If not, was that act/omission by itself a repudiatory breach of contract? (4) If not, was it nevertheless a part of a course of conduct (regardless of any intervening affirmation) comprising several acts and omissions which, viewed cumulatively, amounted to a breach of the implied term of trust and confidence? (5) Did the employee resign in response to that breach?