Constructive dismissal is a bit like the metaphorical bar of slippery soap. We all think we know what it looks like, but sometimes its concepts can be harder to grasp. From an HR perspective it is fairly easy to spot the actions that might provoke an immediate resignation – a significant change in someone’s duties, a cut in salary and so on.
But the harder ones to spot (or avoid) are the breaches of the implied term of mutual trust and confidence. Here, a one-off act can be enough to justify a resignation but, far more often, it is a series of events which culminate in an employee saying ‘enough is enough’. This is known as the ‘last straw’ doctrine and it means an employee can resign in response to a series of breaches of contract or a course of conduct by their employer which, taken cumulatively, amounts to a breach of the implied term of trust and confidence.
Straw that broke the camel’s back
Sometimes the individual incidents in this chain of events may be more modest than something substantial that would justify being seen as a one-off act. Indeed, it is called the ‘last straw’ doctrine because often the final incident in the chain is in itself insubstantial, but is nonetheless sufficient to render the whole series of incidents as a breach of the implied term. The test is whether, viewed objectively, the whole of the alleged course of conduct showed that the employer, over time, had done enough to breach mutual trust and confidence. Tricky – we all have experience of those employees where nothing is ever right – but are these constructive dismissal cases waiting to happen?
New case confirms principles
Cases come along regularly enough to remind us that this is still a vexing area for employers. The recent decision in Kaur v Leeds Teaching Hospital NHS Trust (Court of Appeal) is one of the those cases that gives some comfort to employers but is also a masterclass in the’ last straw’ doctrine.
In this case, Ms Kaur had an argument with a fellow employee. Both were disciplined and given final written warnings because their argument had been within ear-shot of hospital patients. Ms Kaur appealed the decision and, when this was turned down, she resigned claiming constructive dismissal. She alleged that the rejection of her appeal was the last straw in a series of acts which, taken together, amounted to a breach of the implied term of trust and confidence (she was relying on complaints she had made some 15 months previously). Her ET claim was struck out in its early stages as having ‘no reasonable prospect of success’ and she appealed this strike out decision first to the EAT and then to the Court of Appeal. However, she was unsuccessful as the Court of Appeal found that an entirely justifiable disciplinary proceeding could not amount to a breach of contract on the part of the employer.
In coming to this conclusion, the Court took the opportunity (as they often can’t resist doing) of having a right old rummage through the authorities in this area. Out of their bag, they pulled the (earlier) Court of Appeal decision in Waltham Forest v Omilaju. In doing so, and by giving it a big judicial thumbs up, they were saying this is the case you should be following and don’t bother yourself with others. So, what did this case say about the’ last straw’ doctrine?
In looking at any case where the employee is alleging that a final act by their employer has been the last straw in making them resign, court will look at:
- The final straw must contribute something to the breach, although what it adds might be relatively insignificant but not completely trivial.
- The act does not have to be of the same type as earlier acts complained of.
- It is not necessary to characterise the final straw as “unreasonable” or “blameworthy” conduct in isolation, though in most cases it is likely to be so.
- An entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of their trust and confidence in the employer. The test of whether the employee’s trust and confidence has been undermined is judged on an objective basis, not looked at from the employee’s subjective point of view.
- Even if the employee looks like they have waived the right to rely on previous potential breaches by continuing in employment on those earlier occasions, they can still rely on them as part of the ‘last straw’ doctrine.
Points to take away
I think the main ‘take away’ here is that, however difficult the employee, if employers act in good faith and have reasonable and justifiable grounds for what they do, the employee will have difficulty arguing that such action, however unwelcome, provides grounds for a constructive dismissal claim under the ‘last straw’ principles.
It is important, at all times, to remain professional and pause before you send an emails to an irritating employee that you might regret! Also, I think you can take some comfort that, putting aside completely inept disciplinary proceedings, conducting a disciplinary hearing will not put you at risk of a constructive dismissal case.
Is it possible to salvage a relationship like this? Possibly, but not always. If you are faced with a claim for constructive dismissal based on the ‘last straw’ doctrine, it is worth remembering that it is much harder for an employee to win an unfair dismissal claim based on constructive dismissal, compared with a standard unfair dismissal claim, as they often fail to persuade the Tribunal that the employer has acted in breach of contract.
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