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Employment Law Case Update: Ms Kaur v The Leeds Teaching Hospital

Jun 22, 2018

Ms Kaur was employed as a nurse at The Leeds Teaching Hospitals NHS Trust (the Trust). They began disciplinary proceedings against Ms Kaur following an incident with a colleague in April 2013. Ms Kaur was issued with a final written warning in September 2013, which she appealed. Her appeal was dismissed in July 2014.

Ms Kaur resigned the following day, bringing claims of constructive unfair dismissal; citing a series of events beginning with alleged unjustified complaints about her performance, an altercation, and the conduct of the disciplinary and appeal process which amounted to a breach of the implied term of trust and confidence.

The Trust made an application to the Employment Tribunal (ET) to strike out the claim. The Judge held that Ms Kaur couldn’t establish that the conduct of the disciplinary and appeal hearings was a breach of contract, or was the final straw that encouraged her to look back on earlier conduct, which she also believed amounted to a breach of contract. The Judge further held that the altercation could not be the basis for a last straw principle, as she had remained in employment for several months after the event.

Ms Kaur appealed to the Employment Appeal Tribunal (EAT) who dismissed the claim. The Court of Appeal (CA) granted Ms Kaur’s appeal, examining:

  • Whether the Judge had correctly determined the law about constructive dismissal and the last straw principle.
  • Whether he’d been entitled to conclude Ms Kaur’s claim had no reasonable prospect of success.

The Court of Appeal dismissed the claim, relying on an earlier decision made in the case of Omilaju. Here the court held that when there had been sufficient employer conduct resulting in a breach of trust and confidence, but the employee continued the contract, they lost their right to terminate. However, as the employer continued to breach the contract, the employee could then revive their right to terminate based on the employer’s conduct.

The CA offered guidance to tribunals when deciding if an employee was constructively dismissed, encouraging them to look at five key questions when making their decision:

  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. Have they continued the contract since that act?
  3. If not, was that act (or omission) itself a repudiatory breach of contract?
  4. If not, was it nevertheless a part of a course of conduct comprising several acts and omissions, which, viewed cumulatively, amounted to a repudiatory breach of the implied term of mutual trust and confidence?
  5. Did the employee resign in response (or partly in response) to that breach?

The CA held the ET had decided correctly based on law; Ms Kaur couldn’t show that the Trust’s handling of the disciplinary and appeal process could form the last straw principle in a cumulative breach of mutual trust and confidence.

It further held when the Trust took disciplinary action and issued a final written warning, this was a reasonable response.  There was no reason that a full hearing at the ET would have found the sanction unreasonable. The Judge had been right to reject the criticisms of the disciplinary process; the process, which was properly followed, wouldn’t contribute or constitute a repudiatory breach of contract. Although Ms Kaur believed the outcome to be wrong, the disciplinary process wouldn’t destroy or seriously damage the relationship of trust and confidence between an employee and employer if it was conducted objectively and fairly.

Following a potential challenge to the principles of the last straw doctrine in the case of Vairea, it is useful for the CA to confirm the existing last straw principles are correct. The CA’s five key questions are a useful tool in cases such as this.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.