Constructive Dismissal and ‘the final straw’ – the latest banner


Constructive Dismissal and ‘the final straw’ – the latest

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Most UK employment lawyers will agree that while the idea of constructive dismissal is an attractive one – the reality is very difficult. Constructive dismissal is notoriously hard to prove and winning a case of constructive unfair dismissal in the Employment Tribunal often requires the kind of skill deployed by top employment solicitors. A recent case in the Court of Appeal which has merited some attention from London employment law solicitors has looked at the situation when an employee chooses not to resign immediately after a chain of events which breach the trust and confidence between employer and employee.

Constructive dismissal – a reminder

A constructive dismissal arises when an employer acts in a way that breaches the contractual duty of mutual trust and confidence that is implied into every contract of Employment. When the employer’s behaviour is so bad that this duty is breached, the employee is entitled to resign and treat him or herself as dismissed. Should the employee have sufficient qualifying service, he or she can bring a claim for unfair dismissal as well as a breach of contract claim.

The employer’s behaviour can be a one off event that is so bad that of itself it breaches the duty of trust and confidence. It is also possible for an employee to rely on a series of events and a ‘final straw’ all of which taken together entitle an employee to resign and treat him or herself as dismissed. Employment claim solicitors OTS Solicitors are skilled at assisting employees with these types of claim.

The facts in Kaur v Leeds Teaching Hospitals NHS Trust

Haurpreet Kaur worked as a nurse for the NHS Trust from 4th August 2008. She resigned on 28th August 2014. She alleged that she had been subject to unfounded complaints about her performance from early on in her Employment and had to undergo and extensive and unjustified capability performance programme between 2010 and 2012. She had separate issues of bullying with a number of colleagues, and specifically with a healthcare assistant Ms Luckaine. Ms Kaur complained about the behaviour of her colleagues in 2012 but no action was taken. On 22 April 2013, there was an incident in which Ms Kaur and Ms Luckaine were involved in some altercation involving shouting in earshot of patients. Ms Kaur, who was pregnant at the time, went off sick and raised a Dignity at Work complaint.

Following the incident on 22 April, an investigation by the employer NHS Trust led to disciplinary action being taken against both those involved. Ms Kaur’s hearing took place in October 2013 – the same hearing was also to consider the Dignity at Work complaint. The outcome of the hearing was that she received a final written warning (as was Ms Luckaine following her hearing). Ms Kaur appealed but due to her maternity leave, it took until July 2014 for the appeal hearing to take place. The appeal was dismissed by letter dated 16th July 2014, and Ms Kaur resigned the next day. Her Employment ended on 28th August 2014.

Relying on events when there has been a significant gap

At a preliminary hearing to consider whether the claim should be struck out because it had no reasonable prospect of success, or alternatively, should be subject to a deposit order, the judge found that the conduct of the disciplinary and appeal hearing was not sufficient to amount to a breach of contract of itself and so could not be established as a ‘final straw’. In addition, the judge felt that although superficially the appeal was connected to a first ‘last straw’ which was the incident on 22 April 2013 with Ms Luckaine.

She appealed to the EAT against the strike out decision, but the appeal was dismissed and the matter found its way to the Court of Appeal. The question of law to be considered was

“…whether, as the EAT held in Addenbrooke v Princess Alexandra Hospital NHS Trust, a 'last straw' which may itself not amount to a breach of contract but which triggers a resignation can revive an employee's ability to rely on a breach that had previously been waived.”

In the case, on the facts the significant gap between the actions on 22nd April and the appeal against the final written warning which triggered the dismissal, during which Ms Kaur went on maternity leave, amounted to waiving any breach.

The Court of Appeal determines that a further breach can reactivate previously waived breaches

The Court of Appeal considered the lead case of Omilaju v Waltham Forest London Borough Council which established, in its view, that an employee such as Ms Kaur could revive or reactivate a right to rely on previous breaches. However, it went on to consider more recent cases which appeared to cast doubt on this, in particular the comments of the judge in the case of Vairea v Reed Business Information Limited, and his comments on the judgment in Addenbrooke v The Princess Alexandra Hospital NHS Trust.

Fundamentally, the Court of Appeal decided that “…an employee who is the victim of a continuing cumulative breach is entitled to rely on the totality of the employer's acts notwithstanding a prior affirmation; provided the later act forms part of the series (as explained in Omilaju) it does not "land in an empty scale"…”. In other words, it is possible that a chain of breaches or acts can be reactivated – or the right to terminate can be revived, even if an employee did not resign in response to earlier events and at that point waived the right to resign by ‘soldiering on’.

In the event, in this case, on the facts, the decision of the Court of Appeal went against Ms Kaur and the appeal was dismissed; however, the clarification of the law will be helpful to London employment lawyers in future.

OTS Solicitors have a solid track record of acting for employees, taking and intelligent and practical approach to disputes. If you are considering resigning in response to the ay your employer has treated you, it is worth taking legal advice to establish whether you have a claim for constructive dismissal – or whether alternative action would be better in the circumstances. Book your appointment to discuss your employment law matter with one of our top London employment lawyers today – call 0203 959 9123.

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