Kaur v Leeds Teaching Hospitals NHS Trust

Constructive dismissal requires resignation in response to a repudiatory breach of the employment contract. The last straw doctrine applies only to a cumulative breach. The final act need not itself be repudiatory, unreasonable or blameworthy, but it must contribute something to the cumulative breach and cannot be utterly trivial.

Where a continuing cumulative breach follows an employee’s affirmation of the contract, a later act forming part of the series may restore the right to terminate. The legal basis is the post-affirmation conduct, not reversal of the earlier election. A properly conducted disciplinary process or its outcome cannot objectively amount to, or contribute to, a repudiatory breach. Strike-out remains available where the documentary case gives no reasonable prospect of success.

The appellant, a nurse, brought proceedings for constructive unfair dismissal after resigning from the respondent NHS Trust. She relied on alleged unfairness in the handling of a workplace altercation, the disciplinary process, her grievance and the appeal against a final written warning.

The Employment Tribunal struck out the claim under rule 37(1)(a) of the Employment Tribunal Rules of Procedure, holding that the disciplinary and appeal process could not amount to a final straw and that the earlier allegations could not be revived after the appellant had continued in employment. The Employment Appeal Tribunal dismissed her appeals. The Court of Appeal considered whether the Employment Tribunal had applied the correct last straw and affirmation principles, and whether strike-out was permissible on the documentary material.

Underhill LJ delivered the judgment, with which Singh LJ agreed. The appeal was dismissed.

1. Constructive dismissal and the last straw. A claim under section 95(1)(c) of the Employment Rights Act 1996 requires resignation in response to a repudiatory breach. The implied term of trust and confidence is objective. The last straw doctrine is relevant only where the alleged repudiation consists of a cumulative breach, not as a synonym for the act of repudiation.
2. The final act need not itself be a breach of contract, unreasonable or blameworthy. It must nevertheless contribute, however slightly, to a series which cumulatively breaches the implied term, and must not be utterly trivial. The reasoning in Lewis v Motorworld Garages Ltd [1986] ICR 157 and London Borough of Waltham Forest v Omilaju [2004] EWCA Civ 1493 was consistent.
3. Affirmation. An employee who has continued in employment after a cumulative breach may rely on the totality of the employer’s continuing conduct if a later act forms part of the same series. The later conduct restores the right to terminate, without reversing the earlier affirmation. Addenbrooke v Princess Alexandra Hospital NHS Trust [2014] UKEAT 0265/14/0212 was substantially correct; Vairea v Reed Business Information Ltd [2016] UKEAT 0177/15/0306 should be put aside insofar as it rejected that analysis.
4. In the ordinary case a tribunal should ask: what was the most recent act said to have caused the resignation; whether the contract was affirmed after it; whether that act was independently repudiatory; whether it formed part of a cumulative breach; and whether the employee resigned in response to that breach.
5. Application. The disciplinary process was a composite process, and it was proper to consider its first stage and appeal together. The evidence showed a reasonable basis for disciplinary proceedings, a finding of inappropriate non-physical behaviour and a final written warning. The Trust’s handling of the disciplinary and grievance matters was not seriously unfair. Properly conducted disciplinary proceedings, or their outcome, could not objectively destroy or seriously damage trust and confidence.
6. Strike-out. Although tribunals should be slow to strike out claims involving disputed facts, there is no absolute prohibition. Here there were no material issues of primary fact requiring oral evidence. The relevant evidence was documentary, and there was no pleaded or arguable basis for bad faith. The Employment Tribunal was entitled to conclude that the claim had no reasonable prospect of success and to strike it out.

Permission to appeal to the Supreme Court was refused. The respondent’s costs were summarily assessed at £22,500, with enforcement stayed for four weeks and thereafter pending any application to the Supreme Court.

• Court of Appeal (Civil Division): In appeal A2/2016/2944, permission having been limited to the last straw and strike-out issues, the appeal from the Employment Appeal Tribunal was dismissed. Permission in the related appeal concerning reconsideration was refused.
• Employment Appeal Tribunal: HHJ Hand QC dismissed the appeals against the Employment Tribunal’s strike-out decision and refusal of reconsideration on 2 June 2016.
• Employment Tribunal: Employment Judge Lancaster struck out the constructive unfair dismissal claim on 7 May 2015 under rule 37(1)(a) of the Employment Tribunal Rules of Procedure. The application for reconsideration was refused.