Employers Can Rely on Last Straw Doctrine to Dismiss with Immediate Effect

The High Court has held that employers are entitled to rely on the last straw doctrine to dismiss an employee with immediate effect. 

In Kearns v Glencore UK Limited, K was dismissed summarily for gross misconduct after he failed to attend two meetings on 11 October 2010 whilst on a business trip in Singapore. The employer was of the view that he failed to attend the meetings due to excessive alcohol consumption the previous evening and that his conduct amounted to gross misconduct entitling it to dismiss without notice. The decision to dismiss was taken against a background of a number of incidents in the past where performance, conduct and attendance had fallen below expected standards due to excessive alcohol consumption.

K did not claim unfair dismissal but instead brought a claim for wrongful dismissal in the High Court, claiming loss of salary and benefits for his notice period and loss of valuable shares. The employer argued that the failure to attend the meetings due to excessive alcohol consumption either by itself, or when viewed against the background of the previous incidents, constituted a repudiatory breach of the implied term of trust and confidence. Alternatively it constituted gross misconduct entitling it to dismiss without notice. 

The High Court agreed with the employer and dismissed K’s claim. In doing so, it held that where an employer is seeking to show that an employee has breached the implied term of trust and confidence, it is entitled to rely on the “last straw” doctrine. Against a background of past lateness and absence, the employer was entitled to treat K’s conduct on 11 October 2010 as amounting to a repudiation of the contract and to dismiss him with immediate effect. Alternatively his conduct on that day, against that background, amounted to gross misconduct justifying his summary dismissal.

Up until now, it has always been thought that an employer dismissing without notice will have to show that the last incident relied upon as justifying the dismissal amounts to a repudiatory breach of contract. The “last straw” doctrine, which allows an employee to resign in response to an event which is itself relatively minor, but which when taken together with a chain of earlier events amounts to a repudiatory breach, was thought to apply only to employees. The decision in this case, that the “last straw doctrine” applies equally to employers, means that an employer may be able to dismiss without notice based on an act which in itself is relatively minor, if it is the last straw in a series of incidents which together amount to a repudiatory breach of contract. 

Whilst it will always be safer if the final act relied upon itself amounts to a repudiatory breach of contract or gross misconduct in itself, the decision in this case gives employers greater scope for defending a wrongful dismissal claim.