Veitch Penny LLP - Exeter | Crediton, Devon

Case

Buckland –v- Bournemouth University Higher Education Corporation
Court of Appeal – 24 February 2010

Issues

(1) Constructive dismissal
(2) Breach of contract
(3) Range of reasonable responses

Facts

Mr Buckland was a professor of environmental archaeology. Part of his duties were to mark papers which would then be scored by a second marker. These marks were then checked and approved by the Board of Examiners. Mr Buckland’s papers were remarked by the programme leader. They were then remarked by the chair of the board of examiners which led to some marks being increased.

Mr Buckland objected to what had happened. An inquiry was held. Mr Buckland refused to cooperate with the inquiry although he did submit a written document for consideration. The inquiry held in favour of Mr Buckland and was critical of the decisions that had led to the papers being remarked. Mr Buckland was not satisfied by the result and resigned. He brought a claim of constructive dismissal.

At the Employment Tribunal he was successful. The decision to remark the work without his consent did constitute a fundamental breach of contract. The Employment Appeal Tribunal (EAT) considered the matter and made two findings. First, it overturned the Tribunal’s decision stating that the inquiry had corrected the original breach and that there was no constructive dismissal. Mr Buckland had delayed too long in resigning and had affirmed the breach. Second, it found that the test of fundamental breach did not rely on whether the respondent had acted within the range of reasonable responses.

Mr Buckland appealed to the Court of Appeal in respect of the constructive dismissal finding. The employer cross-appealed against the finding that it had acted in fundamental breach of his contract of employment.

Decision

The Court of Appeal had to consider whether the employer could “cure” the breach retrospectively by undertaking the inquiry. It confirmed that this was not possible as this would be contrary to contract law. All an employer could really do in these circumstances was attempt to resolve the breach as this could mean the employee decides to affirm the breach and choose not to resign.

The Court also upheld the Employment Appeal Tribunal’s view that the range of reasonable responses test was not relevant to the question as to whether there had been a fundamental breach. The band of reasonable responses test is applied later in process of analysis, as follows:

1. The Tribunal should look at whether the employer had committed a fundamental breach of the employment contract by using a purely objective test.

2. If there was such a breach that entitles the employee to leave and constructive dismissal is present.

3. The employer may still show that dismissal was for a potentially fair reason.

4. If so, the Tribunal must decide whether for reasons of substance and procedure the dismissal was fair (using the band of reasonable responses test).

The Court gave a further issue consideration, whether if there was found to be a dismissal whether the employer acted reasonably in dismissing Mr Buckland given that they had denied dismissing him in the first place. In this case, the Court had to look at whether the employer was reasonable in its undermining of Mr Buckland. As the employer had not admitted doing this then the employer could not justify it. However, the Court stated that this could not be the case in all constructive dismissal cases.

Comments

This case clarifies the tests to be applied in constructive dismissal cases. The objective test for fundamental breach is logical and the application of a range of reasonable responses test has to be appropriate when the employer then attempts to justify its actions. While an employer cannot cure a breach, its subsequent actions to remedy it are relevant. The employee can consider accepting or affirming the breach although they are under no obligation to do so. The longer the employee stays working, however, the more difficult it is for them to leave and bring a successful claim of constructive dismissal.

The final issue above is more difficult to understand and little guidance was given by the Court as to when an employer attempting to justify something they have not admitted to doing could be successful. More guidance from the Courts is needed to help employers and practitioners alike in its interpretation.

Rachel Billen – Associate Solicitor, Employment Department at Veitch Penny.
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