Kaur v Leeds Teaching Hospitals NHS Trust

The Court of Appeal dismissed the appellant's appeal against the Employment Appeal Tribunal's refusal to allow an appeal from the Employment Tribunal's strike‑out of her unfair (constructive) dismissal claim. The central legal issues were the correct application of the "last straw" doctrine in constructive dismissal and whether the Employment Judge was entitled to strike out the claim as having no reasonable prospect of success. The court applied the test in Omilaju and concluded that the Employment Judge had correctly directed himself on the law (including the Malik implied term of mutual trust and confidence) and was entitled on the papers to find that the Trust's handling of the disciplinary and appeal processes was not capable of contributing to a cumulative repudiatory breach. The court rejected the argument that an appeal outcome could so readily "revive" earlier complaints and held that, on the material before the tribunal, the disciplinary process and outcome were objectively innocuous and therefore insufficient to establish the "final straw" required for constructive dismissal.

Background and nature of the claim:

• The appellant, a nurse, resigned following a concluded disciplinary process and appealed a strike‑out of her claim for unfair (constructive) dismissal. She alleged that a series of events (a "hinterland" of capability concerns and bullying by colleagues, an altercation on 22 April 2013, and the Trust's subsequent handling of that incident) cumulatively breached the implied term of mutual trust and confidence and that the appeal outcome was the final straw triggering her resignation. She sought a hearing of her unfair dismissal claim.

Procedural posture:

• Employment Tribunal: claim struck out under rule 37(1)(a) on 7 May 2015. Employment Appeal Tribunal: appeal dismissed (rule 3(10)) on 2 June 2016. Court of Appeal: appeal against the EAT decision.

Issues framed by the court:

• whether the Employment Judge correctly stated and applied the law on constructive dismissal and the last straw principle;
• whether the tribunal was entitled on the papers to conclude the claim had no reasonable prospect of success (i.e. whether the post‑incident disciplinary handling could, objectively, contribute to a cumulative repudiatory breach and be the final straw);
• how affirmation and the possibility of "revival" of earlier breaches operate in cumulative Malik‑term cases.

Court's reasoning (concise):

• The Court reiterated the Omilaju framework and the Malik formulation of the implied term of mutual trust and confidence. The "last straw" applies only where repudiation is said to be cumulative; the final act must contribute, however slightly, to the breach.
• The Employment Judge had correctly analysed the pleaded case as a cumulative breach with the Trust's post‑incident handling constituting the alleged last straw, and applied Omilaju in deciding whether that last straw could, objectively, contribute to a cumulative breach.
• On the evidence in the tribunal bundle (investigation report, witness statements and hearing/appeal documentation), the Employment Judge was entitled to regard the disciplinary process and outcome as reasonable and "innocuous" in Omilaju's sense; there was no arguable basis for alleging bad faith or procedural unfairness that could, on the papers, amount to a repudiatory breach.
• The Court rejected a narrow reading that would bar reliance on earlier conduct where an employee had remained in employment: Omilaju and Lewis permit the later act in a continuing series to revive the right to terminate, and this does not conflict with principles about affirmation when analysed correctly.

Conclusion: The appeal was dismissed because the tribunal was entitled to strike out the claim for lack of reasonable prospect of success on the material before it.

Appeal dismissed. The Court held that the Employment Judge correctly applied the law on constructive dismissal and the "last straw" doctrine (following Omilaju and Malik) and was entitled, on the documentary material, to conclude that the Trust's disciplinary and appeal process was not capable of contributing to a cumulative repudiatory breach of contract and therefore the claim had no reasonable prospect of success.

Employment Tribunal: claim struck out by Employment Judge Lancaster under rule 37(1)(a) (preliminary hearing 7 May 2015; Reasons issued 10 June 2015). Employment Appeal Tribunal: initial paper rejection by HHJ Eady QC (20 October 2015, rule 3(7)); oral hearing before HHJ Hand on 6 January 2016 and adjourned; appeal dismissed by HHJ Hand on 2 June 2016 (rule 3(10)). Court of Appeal: appeal dismissed [2018] EWCA Civ 978 (judgment 1 May 2018).