Constructive dismissal - soldiering on through contract law

Constructive dismissal is when an employee resigns in response to their employer’s conduct and then brings a legal claim. Over recent years the higher courts have reminded us that constructive dismissal is grounded in contract law. The employee must be able to show that the employer’s conduct destroyed the employment contract, so allowing them to resign. Contract law has many traps: recent cases have stated that someone who delays too long in deciding to resign (even if off sick), or who gives the employer their full contractual notice period, may have ‘affirmed’ the contract and so missed the opportunity to claim constructive dismissal.

Two years ago, the Employment Appeal Tribunal (EAT) followed this strict contractual approach when looking at the ‘last straw doctrine’. Normally an employee can rely on a series of incidents that cumulatively amount to a fundamental breach of contract allowing them to resign. However, the EAT said that if the employee did not resign once these incidents amounted to the fundamental breach, and instead “soldiered on” at work, they will have affirmed the contract. They would not be able to rely on these breaches in any future last straw claim even if new incidents of poor treatment arose.

In Kaur v Leeds Teaching Hospitals NHS Trust  the Court of Appeal has now overruled this, confirming that the law of affirmation of contract is not strictly relevant to such a claim. All that is required for a last straw resignation is that a series of incidents, whether or not previously affirmed, amounts to a fundamental breach of contract. If the employee does not delay in their resignation from the last of these incidents, their claim will be well-founded.