Can an employee claiming constructive dismissal rely on a series of acts by an employer including a previously affirmed repudiatory breach of contract?
Yes, held the Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust.
The Claimant claimed constructive dismissal after a 'last straw' when her appeal against a final written warning was rejected. The tribunal struck out her claim as it had no reasonable prospect of success, the appeal failed.
The Court reviewed cases on the 'last straw' doctrine and formulated an approach to 'last straw' cases, referring to the implied term of trust and confidence as 'the Malik term':
"In the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions:
(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?
(2) Has he or she affirmed the contract since that act?
(3) If not, was that act (or omission) by itself a repudiatory breach of contract?
(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation, for the reason given at the end of para. 45 above.)
(5) Did the employee resign in response (or partly in response) to that breach?"
Here, there was no 'last straw' as the employer's disciplinary process was perfectly proper, so the tribunal was entitled to dismiss the case.
Thanks to Ed McFarlane of Deminos HR for preparing this case summary.