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In Kaur v Leeds Teaching Hospitals NHS Trust [2018], the Court of Appeal clarified the law relating to affirmation in relation to constructive dismissals where a claimant relies on a number of incidents to argue there was a cumulative breach of contract.

It is a well-established principle that employees can claim constructive dismissal when an employer breaches the implied duty of trust and confidence, and the employee resigns in response to this breach. The employee can either rely on a single, sufficiently serious incident or on a series of incidents that cumulatively amount of a breach of the implied duty. In the case of the former, the employee must resign promptly in response to the breach; otherwise, they risk having been seen to affirm the contract. This becomes more difficult, however, when dealing with cases of  cumulative breach of contract.

Previous case law had concluded that, once a series of acts had amounted to a cumulative breach of the implied term, the employee would be seen to have affirmed the contract unless they resigned quickly. A future act could not be a ‘second’ last straw.

Cumulative breach of contract and Kaur v Leeds Teaching Hospitals

In Kaur, however, the Court of Appeal disagreed and confirmed that another breach that followed a previous affirmation may revive the employee’s right to resign and claim constructive dismissal. Lord Justice Underhill sets out the questions to be addressed when considering constructive dismissal as follows:

“(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

(2) Has he or she affirmed the contract since that act?

(3) If not, was that act (or omission) by itself a repudiatory breach of contract?

(4) If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term [i.e. the implied term of trust and confidence]? (If it was, there is no need for any separate consideration of a possible previous affirmation.)

(5) Did the employee resign in response (or partly in response) to that breach?”

 He also confirmed that an employee exercising their right to appeal is unlikely to be an unequivocal affirmation of contract, and that the outcome of a fair and reasonable disciplinary process cannot amount to or contribute towards a repudiatory breach of contract.

Breach of implied terms of trust and confidence

Following Kaur, if a series of incidents amounts to a breach of the implied term of trust and confidence, an employee will be entitled to rely on the totality of that series, whether or not previous breaches had been affirmed, so long as the employee does not delay in resigning in response to the most recent act.

Therefore, incidents that an employer considered dealt with could still contribute towards a breach of the implied term of trust and confidence.  It is unclear whether an employee could rely on previous breaches if there had been an unequivocal, express affirmation, but this decision widens an employee’s ability to claim a fundamental breach of contract.

Jonathan Scollen is a paralegal in our Leeds employment team. For more information on constructive unfair dismissal claims or any of the issues raised in this article, please contact Jonathan by emailing [email protected] or calling 0113 368 7583.