Constructive Dismissal and the ‘final straw’

8 May, 2018
by: Cripps Pemberton Greenish

This week the Court of Appeal provided clarity on the law regarding the affirmation of a breach of contract in ‘final straw’ constructive dismissal cases.  In the case of Kaur v Leeds Teaching Hospitals NHS Trust, the Claimant claimed constructive dismissal when her appeal against a final written warning was rejected, the ‘last straw’.  The Court of Appeal found that the Employment Judge was entitled to strike out the claim as it had no reasonable prospects of success. 

Previously there have been conflicting approaches as to whether an employee could rely upon previous affirmed breaches of contract and therefore the Court of Appeal considered this question and provided clarification.

A series of acts, may not individually amount to breaches of contract, but when taken together, may amount to a breach of the implied term of trust and confidence.  In such cases the ‘final straw’ may be minor, but must contribute to the overall breach of contract.  If the employee does not act on the employer’s behaviour but continues working, then they will have affirmed the contract and accepted the breach.  This results in the employee having lost the right to resign and claim constructive dismissal in response to the breach.

The Court of Appeal have however confirmed that in a case where their have been a series of breaches, further contributory acts will in effect ‘revive’ the employee’s right to rely upon the entire series of acts, despite the earlier affirmation.  This then allows the employee to resign and claim constructive dismissal, so long as the resignation is in response to an act which is capable of contributing to the cumulative breach. 

The Court formulated an approach to ‘last straw’ cases, referring to the implied term of trust and confidence as ‘the Malik term’: “In the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions:

(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 (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation.)

(5) Did the employee resign in response (or partly in response) to that breach?”

Therefore, even though Employers may have dealt with and even forgotten previous complaints, employees may seek to rely upon those historical issues as contributing to a cumulative breach of trust and confidence. 

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