Employers may now be able to dismiss employees for gross misconduct for acts that are not in themselves gross misconduct, but are part of a series of acts that, taken together, amount to gross misconduct justifying dismissal without notice.
An employee drank heavily the night before an important meeting, and consequently missed it. He had a history of drink-related problems at work. When he was dismissed without notice for gross misconduct he claimed wrongful dismissal.
The High Court said the ‘last straw’ doctrine applied and the dismissal was valid. The doctrine has traditionally been used by employees, who argue that the last in a series of relatively minor acts by their employer can entitle them to resign if the cumulative effect of the employer’s acts is to repudiate their contract of employment, ie the last minor act is the ‘last straw’.
However, the court ruled that the last straw doctrine could also apply where an employee’s series of acts, none of which would amount to gross misconduct justifying dismissal on its own, amount to gross misconduct when taken cumulatively. The test was whether the employee’s behaviour showed he or she no longer intended to be bound by the implied term of trust and confidence in the contract of employment.
Employers faced with misconduct by an employee should consider whether it is the last straw, ie the last in a series of acts by the employee which, cumulatively, may amount to gross misconduct justifying dismissal without notice.
Case ref: Kearns v Glencore UK Limited  EWHC 3697
Jonathan Waters is the founder of Helix Law. Before qualifying as a Solicitor he worked in industry and in investment banking for over a decade. He was also the Partner in charge of Commercial Litigation, Employment Law and Property Litigation at Stephen Rimmer LLP. Jonathan has wide experience of helping and advising businesses to avoid or to deal with commercial disputes and in particular construction disputes.
This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice.