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Last straw and constructive dismissal – What do I need to know?

03 May 2018

How should an Employment Tribunal deal with the situation where there are a series of acts relied upon by an employee which culminated in a last straw that caused the employee to resign? This issue was examined in Kaur v Leeds Teaching Hospital.

The facts

Ms Kaur was employed by the Respondent Trust as a nurse between 4 August 2008 and 28 August 2014. She argued that from the very early days of her employment she was the subject of complaints about her performance which were not justified. She was put on a formal capability process in 2010. Despite numerous obstacles being put in her way she was finally deemed competent in January 2012. However, she says that the episode badly undermined her self-confidence. Separately, problems developed between herself and a number of colleagues whom she felt were bullying her. These included in particular a healthcare assistant called Ms Luckaine. Ms Kaur made a formal complaint about their conduct in 2012, but no action was taken.

David Hoey
David Hoey, Partner

On 22 April 2013 there was an altercation between Ms Kaur (who was pregnant) and Ms Luckaine. Each said that the other assaulted her in the course of the incident. There were several witnesses to the incident or its aftermath. The Claimant went off sick and raised a Dignity at Work complaint against Ms Luckaine.

There was an investigation of the incident under the Trust's disciplinary processes, which was not completed until the end of July. The recommendation was that disciplinary proceedings should be brought against both individuals. There was a hearing before a disciplinary panel on 2 October 2013. Ms Kaur was told that this also covered her Dignity at Work complaint. She was represented by an RCN representative. There were statements and interview records from a number of witnesses.

The panel's decision was communicated to the Claimant by letter dated 16 October 2013. It decided that she was guilty of "inappropriate behaviour". The panel found that the Claimant and Ms Luckaine had been shouting at one another, close to an area where patients were being treated. The panel recorded that there was conflicting evidence as to whether there had been physical contact, but it deliberately refrained from deciding that issue. Ms Kaur was given a final written warning. Shortly afterwards she commenced a period of maternity leave.

The case against Ms Luckaine was also found proved and she too was given a final written warning.

The Claimant appealed against the outcome. There was a substantial delay in hearing the appeal because she had recently given birth, but a hearing eventually took place on 14 July 2014. The appeal was dismissed, and the reasons given in a letter dated 16 July.
The Claimant gave notice of resignation the following day and her employment ended on 28 August 2014. Her resignation letter claimed that she had not been treated fairly and argued that all trust and confidence had been destroyed.

The claim

The Claimant then raised a claim for constructive unfair dismissal. She argued that the 'last straw' was when her appeal against the final written warning was rejected.
The Employment Tribunal struck out her claim as it had no reasonable prospect of success. The Claimant’s appeal to the Employment Appeal Tribunal failed. She appealed to the Court of Appeal.

They key legal issue in this case was whether there was any action that entitled the Claimant to resign. In this regard she had relied upon the “last straw doctrine”, which is where a claimant argues that there has been a series of breaches of contract which culminate in something that the claimant says entitles her to resign (even if the action causing the resignation was not itself a fundamental breach of contract). The argument is that taking all the conduct together the employee is entitled to consider the employer to have breached the contract of employment.

The 5 questions

The Court of Appeal stated that in these types of cases there are 5 questions the Employment Tribunal needs to consider:
(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, the resignation?

(2) Has the employee done anything to suggest that they have accepted (or affirmed) the contract since that act?

(3) If not, was that act (or omission) by itself a repudiatory breach of contract (i.e. of sufficient importance to justify resignation)?

(4) If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the employee’s contract by showing that all trust and confidence had been destroyed? 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?

Here, the Court of Appeal agreed with the Employment Tribunal that there was no 'last straw'. The employer's disciplinary process was perfectly proper. As a result, the Employment Tribunal was entitled to dismiss the case.

Going forward…

It is not uncommon for employees to rely on a series of actions by the employer in seeking to establish a claim for constructive unfair dismissal. This case provides a helpful staged process to determine the legal position. As ever, the facts in each case are crucial and careful consideration is needed.

Employers need to exercise caution to ensure that their actions not only comply with the express terms of the contract, but also avoid any breach of the implied term that neither party will, without just and proper cause, act so as to destroy the trust and confidence within the employment relationship. That can be challenging when the employment relationship begins to go awry.

The case also suggests that even if the employee has previously accepted some potential breach of contract (such as by continuing to remain in work etc), it may be possible to rely on that conduct as part of the course of conduct which leads to the last straw. That is an important point and one to bear in mind.

As ever, seek expert employment law advice from your BTO employment lawyer to help minimise the risk.

The full judgment can be read here 

Contact: David HoeyPartner dho@bto.co.uk T: 0141 221 8012 

 

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