Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978

A nurse resigned after disciplinary proceedings and a final written warning following a workplace altercation, claiming constructive unfair dismissal. The Court of Appeal upheld the striking out of her claim, clarifying the 'last straw' doctrine and affirmation principles in cumulative breach cases.

Facts

The Appellant, Ms Harpreet Kaur, was employed as a nurse by Leeds Teaching Hospitals NHS Trust between August 2008 and August 2014. She alleged unjustified complaints about her performance from early in her employment, leading to a capability process from 2010 to 2012. She also complained of bullying by colleagues, particularly a healthcare assistant, Ms Luckaine.

On 22 April 2013, an altercation occurred between the Appellant (then pregnant) and Ms Luckaine, each accusing the other of assault. The Appellant raised a Dignity at Work complaint and went off sick. Following investigation, both were subjected to disciplinary proceedings. On 2 October 2013, a disciplinary panel found the Appellant guilty of ‘inappropriate behaviour’ (shouting in an area accessible to patients) and issued a final written warning. The panel did not determine whether physical contact had occurred. Ms Luckaine received the same sanction.

The Appellant appealed internally; the appeal was dismissed on 14 July 2014. She resigned the following day, citing fundamental breach of contract and breach of trust and confidence.

Procedural History

Her constructive unfair dismissal claim was struck out by Employment Judge Lancaster on 7 May 2015 under rule 37(1)(a) as having no reasonable prospect of success. The EAT (HHJ Hand QC) dismissed her appeal under rule 3(10). Permission to appeal to the Court of Appeal was granted on a limited question concerning the interaction between the ‘last straw’ doctrine in London Borough of Waltham Forest v Omilaju [2005] ICR 481 and the EAT’s decision in Addenbrooke v Princess Alexandra Hospital NHS Trust.

Issues

The principal issues were:

• Whether the Employment Judge correctly directed himself on the law of constructive dismissal, particularly the ‘last straw’ principle and the relationship between affirmation of contract and subsequent breaches.
• Whether the Judge was entitled to conclude, without a full hearing, that the claim had no reasonable prospect of success.

Arguments

Appellant

The Appellant contended that the disciplinary process was flawed: the panel had pre-judged the case, relied on unreliable evidence (particularly that of Ms Pease), failed to call Dr Callister, imposed a disproportionate sanction, improperly conjoined her Dignity at Work complaint with the disciplinary process, and deliberately delayed proceedings. She argued the appeal outcome was a ‘last straw’ reviving earlier breaches, and that the ET should not have struck out the claim without hearing oral evidence.

Respondent

The Trust submitted that the disciplinary process was conducted properly, that no act in the post-incident handling could constitute a repudiatory breach or contribute to one, and that the Judge was entitled to conclude on the documentary record that the claim had no reasonable prospect of success.

Judgment

The Law on Constructive Dismissal and the ‘Last Straw’

Underhill LJ undertook a detailed review of Omilaju, identifying four key points: (i) the last straw doctrine applies only to cumulative breach cases; (ii) where an employer’s conduct has crossed the ‘Malik threshold’ and the employee has affirmed by soldiering on, a further act forming part of the continuing course of conduct revives the right to terminate; (iii) there are theoretically two types of last straw case (where the threshold is crossed by the last act, or where the threshold was previously crossed and revival occurs), though this distinction is of limited practical significance; (iv) the last straw need not be trivial.

Underhill LJ disagreed with HHJ Hand’s analysis in Vairea v Reed Business Information Ltd, which suggested that affirmation prevents revival. He held this was inconsistent with the explicit statements in Lewis v Motorworld Garages Ltd and Omilaju that an employee may rely on the totality of cumulative conduct notwithstanding prior affirmation, provided the later act forms part of the continuing series. The Court endorsed Lewis J’s analysis in Addenbrooke, subject to preferring the term ‘revival of the right to terminate’ rather than ‘reactivation of the breach’.

Underhill LJ set out five practical questions for tribunals: (1) what was the most recent triggering act?; (2) has the employee affirmed since?; (3) was that act itself repudiatory?; (4) if not, was it part of a course of conduct cumulatively amounting to a breach of the Malik term?; (5) did the employee resign in response?

Application to the Facts

Underhill LJ held that the Employment Judge had directed himself correctly. The case was properly analysed as a cumulative breach case, with the post-incident handling (treated as a composite disciplinary process) as the last straw. If the disciplinary process was ‘innocuous’ in the Omilaju sense, the earlier ‘hinterland’ allegations could not be revived.

On the substantive criticisms, Underhill LJ held: there was ample evidence to justify proceeding to disciplinary action; the finding that the Appellant engaged in shouting in a patient-accessible area was clearly supported by multiple witness statements; Dr Callister’s evidence was irrelevant to the actual finding made; the sanction was not unreasonable; combining the Dignity at Work complaint with the disciplinary process was appropriate where they arose from the same incident; and allegations of deliberate delay had no evidential basis.

Strike-out Without Evidence

Although tribunals should be slow to strike out claims involving disputed facts (citing Eszias and Balls), there is no absolute rule (Ahir v British Airways). Here, there were no relevant disputed primary facts: the tribunal’s role would have been to assess procedural fairness on the documentary record, not to determine the rights and wrongs of the incident itself.

Outcome

The appeal was dismissed. Permission to appeal to the Supreme Court was refused. Costs of £22,500 were summarily assessed against the Appellant, with a four-week stay of enforcement.

Implications

This judgment provides authoritative clarification of the ‘last straw’ doctrine in constructive dismissal cases. It reaffirms that an employee who has affirmed the contract following earlier conduct crossing the Malik threshold can still rely on the totality of that conduct if there is a subsequent act forming part of the continuing course of conduct. The Court explicitly recommended that tribunals follow Omilaju rather than the analysis in Vairea.

The five-question framework set out by Underhill LJ provides practical guidance for tribunals and practitioners assessing constructive dismissal claims. The judgment also confirms that, while strike-out should rarely be used where facts are disputed, it remains available where the issues turn on documentary evidence and the question is one of procedural fairness rather than primary fact-finding. The decision is significant for employers conducting internal disciplinary processes, confirming that a properly conducted disciplinary process, even one resulting in an adverse outcome for the employee, cannot objectively destroy or seriously damage the relationship of trust and confidence.

Verdict: Appeal dismissed. The Court of Appeal upheld the Employment Tribunal’s decision to strike out the Appellant’s constructive unfair dismissal claim, finding that the Employment Judge correctly directed himself on the law and was entitled to conclude that the claim had no reasonable prospect of success.

Source: Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978