Following a fair disciplinary process cannot amount to a breach of the implied term of trust and confidence

Ben Spence

In Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978 the Court of Appeal have reviewed the ‘last straw’ doctrine and set out a 5 stage test to be applied in all constructive dismissal cases.

In order to succeed in a constructive dismissal case an employee must show that the employer has committed a repudiatory, or fundamental, breach of the contract of employment and that the employee resigned as a result of the breach.  It is common for an employee to claim a breach of the implied term of trust and confidence.  Usually there is a series of acts and the employee relies on the final act as ‘the last straw’.

The Claimant in this case resigned after being disciplined and issued with a final written warning following an altercation with another member of staff.  She claimed previously that her performance had been unfairly criticised and that the final warning amounted to the last straw.  The implied term of trust and confidence was comprehensively defined in the leading case of Malik v Bank of Credit and Commerce International SA [1998] AC 20 as ‘an obligation on the employer not, without reasonable and proper cause, to conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.’

After reviewing the leading cases the Court of Appeal formulated the following series of questions to be applied in all constructive dismissal cases:-

(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?  (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?

On the facts of this case the employee failed.  The employer had followed a disciplinary process in ‘perfectly proper fashion’.  Such a process, properly followed, or its outcome, cannot constitute a repudiatory breach of contract, or contribute to a series of acts which cumulatively constitute such a breach.  The employee may believe the outcome to be wrong; but the test is objective, and a fair disciplinary process cannot, viewed objectively, destroy or seriously damage the relationship of trust and confidence between employer and employee.


Ben Spence – HR Business Partner

Ben Spence

I am a confident and commercial MCIPD qualified HR Professional with over 15 years’ experience in Human Resources. Prior to joining Cook Lawyers I spent 3 years at Wigan and Leigh College as a HR Business Partner and 4 years providing a HR Service to Schools in Lancashire and Wigan through the local authority. I have a real passion to ensure employment issues are managed effectively and in a timely manner.