Kaur v Leeds Teaching Hospitals NHS Trust

Factual and Procedural Background

The Appellant was employed as a nurse by the Respondent Trust from August 2008 until August 2014. She commenced proceedings in January 2015 at the Employment Tribunal (ET) claiming unfair (constructive) dismissal. Her claim was struck out at a preliminary hearing in May 2015 by Employment Judge Lancaster under rule 37(1)(a) of the Employment Tribunal Rules of Procedure. The Appellant’s appeal against that decision was dismissed by the Employment Appeal Tribunal (EAT) in June 2016. This appeal concerns the dismissal of that appeal.

The Appellant alleged that from early in her employment she faced unjustified complaints about her performance and was placed on a formal capability process from 2010 to 2012. She also claimed to have been bullied by colleagues, notably a healthcare assistant, and made a formal complaint in 2012 which the Trust did not act upon.

On 22 April 2013, the Appellant (who was pregnant) and the healthcare assistant were involved in an altercation, each accusing the other of assault. The Appellant raised a Dignity at Work complaint and subsequently disciplinary proceedings were initiated against both parties. The Appellant was found guilty of inappropriate behaviour involving shouting near patient areas and was given a final written warning in October 2013. She went on maternity leave shortly thereafter.

The Appellant appealed the disciplinary decision in July 2014, but the appeal was dismissed. She resigned the following day, citing fundamental breaches of contract and trust and confidence by the Trust, particularly regarding the handling of her Dignity at Work complaint and disciplinary process.

Her ET claim alleged that the Trust’s conduct, including delays, failure to address her complaints properly, and unfair disciplinary proceedings, cumulatively amounted to a repudiatory breach of contract justifying her constructive dismissal.

The Respondent applied to strike out the claim on the basis that it had no reasonable prospect of success. The Employment Judge dismissed the claim on the papers, concluding that the disciplinary and appeal processes were conducted reasonably and that the Appellant had no reasonable prospect of establishing a repudiatory breach. The Appellant’s application for reconsideration was refused. The EAT dismissed her appeals against both the strike-out and reconsideration decisions.

The Appellant sought permission to appeal to the higher court, which was granted only on the limited question of the correct application of the "last straw" doctrine in constructive dismissal law.

Legal Issues Presented

1. Whether the Employment Judge correctly directed himself on the law relating to constructive dismissal and, in particular, the "last straw" principle.
2. Whether the Employment Judge was entitled to conclude that the Appellant’s claim had no reasonable prospect of success on the facts and law.

Arguments of the Parties

Appellant's Arguments

• The Trust’s disciplinary and grievance processes were flawed and unfair, amounting to a fundamental breach of contract.
• The dismissal of her appeal constituted a "last straw" that revived earlier breaches and justified her resignation.
• The Employment Judge misapplied the law in Omilaju and related cases, particularly regarding the "last straw" doctrine and affirmation of contract.
• The delay and handling of the Dignity at Work complaint and the disciplinary proceedings caused significant stress and loss of trust.
• The appeal panel’s decision was unreasonable and did not properly consider her grounds.

Respondent's Arguments

• The disciplinary and appeal processes were conducted fairly, reasonably, and in accordance with the Trust’s procedures.
• The Appellant’s criticisms were unsupported by evidence and did not amount to a repudiatory breach of contract.
• The "last straw" doctrine was correctly applied, and the dismissal of the appeal could not revive any earlier breaches once the contract had been affirmed.
• The Employment Judge was entitled to strike out the claim on the papers given the absence of any reasonable prospect of success.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analysed the Appellant’s claim as a cumulative breach of the implied term of trust and confidence, applying the "last straw" doctrine as formulated in Omilaju and related authorities. The court confirmed that the doctrine applies only where the repudiation is cumulative and not to one-off serious breaches.

The Employment Judge’s approach was to consider whether the disciplinary and appeal processes following the April 2013 incident constituted a "final straw" capable of contributing to a repudiatory breach. The Judge found no reasonable prospect that the Appellant could establish that the Trust acted unreasonably or unfairly in conducting these processes.

The court rejected the Appellant’s criticisms of the disciplinary process, including alleged bias, failure to call a particular witness, and the sanction imposed. It held that the evidence supported the panel’s findings and that the process was objectively fair and reasonable.

The court addressed the complex issue of whether a later act of the employer can "reactivate" or "revive" an earlier breach after the employee has affirmed the contract by continuing employment. It endorsed the binding authority of Omilaju, which allows the employee to rely on the totality of conduct including the last straw, provided it contributes to the repudiation. The court disagreed with the contrary view expressed in Vairea and Addenbrooke to the extent they conflict with Omilaju.

The court also considered procedural fairness in striking out the claim without oral evidence, concluding that the issues were primarily legal and documentary, and that no arguable basis existed for bad faith or unfairness requiring a full hearing.

Holding and Implications

The court DISMISSED the Appellant’s appeal.

The court held that the Employment Judge correctly applied the law on constructive dismissal and the last straw doctrine, and was entitled to find that the Appellant’s claim had no reasonable prospect of success. The disciplinary and appeal processes were not repudiatory breaches of contract, and the dismissal of the appeal did not revive any earlier breaches in a manner that could justify constructive dismissal.

The decision means that the Appellant’s claim remains struck out, and no new precedent was established beyond reaffirming the primacy of the Omilaju framework. The Appellant was granted limited permission to appeal only on the narrow legal point concerning the last straw doctrine, which the court resolved against her. The court also refused the Appellant’s application for permission to appeal to the Supreme Court.

Costs were awarded against the Appellant with a limited stay on enforcement pending any application to the Supreme Court.