Employers who believe they have successfully dealt with complaints from employees are being warned they could find the incidents cited in unfair constructive dismissal claims if future incidents occur.
Lindsey Knowles, partner at Kirwans law firm said a recent judgement in Kaur-v-Leeds Teaching Hospitals NHS Trust at the Court of Appeal had confirmed a point of law that, until now, had been unclear.
It is well established in employment law that a series of acts, which may not individually amount to breaches of contract, can, when taken together, amount to a breach of the implied term of trust and confidence through the ‘last straw’ doctrine.
This means that a seemingly minor action which forms part of a cumulative breach by an employer could, as long as it isn’t utterly trivial or innocuous, entitle an employee to resign and make a constructive unfair dismissal claim.
That particular point of law was at odds with another, which had established that in situations where employees had chosen to continue in their employment following a breach of contract by their employer, it was deemed that the employee had ‘affirmed’ the contract and so had lost their right to resign and claim constructive unfair dismissal in relation to the breach.
Lindsey explained:
“The court have reviewed the ‘last straw’ doctrine to decide whether an employee could still raise the cumulative effect of the previous acts combined with a new one as evidence of constructive dismissal, or whether an earlier affirmation of the contract meant that the employee had waived their rights.
“It confirmed that, if a further act or acts do occur, and the employee resigns as a result, they can indeed argue that it was the employers’ behaviour treated in totality, that led to a breach of the implied term of trust and confidence.
“This decision provides much-needed clarity on a previously ambiguous point, and should act as a reminder to employees of the importance of dealing effectively with initial complaints.”
Lindsey said it was vital that organisations followed their own complaints process to the letter to prevent employee problems from escalating. She said:
“Employees who have regretted previous decisions to work on through problems at work will now be clear that, if subjected to more of the same, they can take further action based on incidents which the employer may have thought had been put to bed.”
Earlier this year Lindsey warned employers to follow their organisation’s policies and procedures ‘to the letter’ after it was revealed that employment law tribunal claims have soared following the abolition of tribunal fees.
Recent figures published by the Ministry of Justice revealed a 90% rise in employment law tribunal claims between October and December 2017 compared with the same period in 2016, prior to the abolition of fees.
The latest statistics show that between October and December last year, 8,173 single claims were brought; an increase of 4,200 from the same period in 2016.
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