UK: Constructive dismissal – the “last straw”
After an altercation with a colleague, Ms Kaur raised a grievance. This triggered the NHS Trust bringing disciplinary proceedings against her, which were combined with the grievance procedure, and she was given a final written warning for inappropriate behaviour. Her appeal against this decision was not concluded for several months (for various reasons, including that she was on maternity leave). When her appeal was finally rejected, Ms Kaur brought a claim for constructive unfair dismissal, claiming that the rejection of her appeal was the last straw in a series of acts.
The Court of Appeal said that if there is a continuing cumulative breach of the implied duty of trust and confidence, an employee may rely on the totality of the employer’s acts even though the employee carried on working after the earlier breaches – provided that the later act (the last straw) formed part of the series of breaches. The effect of the final act is to revive the right to terminate their employment based on the totality of conduct.
If after an unfair disciplinary decision, an employee carries on working and appeals that decision, a further act by the employer – including upholding the disciplinary decision on appeal – may revive the earlier serious breach.
Kaur v Leeds Teaching Hospitals NHS Trust http://www.bailii.org/ew/cases/EWCA/Civ/2018/978.html