When the ‘last straw’ complaint adds up to unfair dismissal

The Court of Appeal has provided useful guidance on when an employee can claim constructive unfair dismissal based on a “final straw” event following a series of related grievances.

The issue arose in the case of Harpreet Kaur who worked for Leeds Teaching Hospitals NHS Trust.

There was an altercation between Ms Kaur and another staff member. A disciplinary panel found that Ms Kaur was guilty of inappropriate behaviour and she was given a final written warning. Her appeal was dismissed, and she resigned the next day.

She began proceedings for constructive unfair dismissal, relying on a series of events beginning with alleged unjustified complaints about her performance, the altercation and then the conduct of the disciplinary and appeal proceedings as the final straw that amounted to a breach of the implied term of trust and confidence between employer and employee.

The Trust applied to strike out the claim.

The employment judge held that there was no reasonable prospect of her establishing that the conduct of the appeal hearing was itself a breach of contract and a “final straw”.

He further held that there was no reasonable prospect of showing that she had not affirmed or waived any earlier breaches by continuing in employment. He struck out her claim. The Employment Appeal Tribunal dismissed her appeal.

The Court of Appeal has upheld those decisions. In doing so it provided helpful guidance on the concept of the final straw. It said the doctrine was relevant only in cases where the repudiation took the form of a cumulative breach.

Where there had been a series of acts that cumulatively amounted to a breach, but the employee had affirmed the contract and then the conduct was continued by further acts, the employee could revive their right to terminate based on the totality of the employer’s conduct.

That, however, was not what had happened in this case. The conduct of the Trust at the appeal hearing was not a breach of the employer-employee contract and so could not be the final straw in a series.

The judge at the original hearing had been right to reject the employee’s criticisms of the disciplinary process. Such a process, properly followed, could not constitute a repudiatory breach of contract, or contribute to a series of acts which cumulatively constituted such a breach.

Please contact Robert Bedford if you would like more information about the issues raised in this article or any aspect of employment law.