A reasonable response?

Bournemouth University Higher Education Corporation v Buckland

To succeed in a constructive dismissal claim, employees have to show a fundamental breach of contract by the employer and then resign promptly in response to that breach. In Bournemouth University Higher Education Corporation v Buckland, the Employment Appeal Tribunal (EAT) said that when deciding whether an employer was in fundamental breach, the range of “reasonable responses” test did not apply.

Basic facts

Professor Paul Buckland, professor of environmental archaeology at Bournemouth University, was responsible for marking the end of year exam papers. In 2006, a high percentage of students failed both the exams and their re-sits.

Although the re-sit marks were checked and confirmed by the board of examiners. the programme leader for the Archaeology BSc course re-marked the re-sit papers and made a number of criticisms of the original marking. The chair of the board of examiners (Dr Astin) then arranged for the original scripts to be re-marked by another member of staff (Mr Hewitt) which resulted in an increase in marks for a number of students.

Professor Buckland then complained in an e-mail on 19 September about the arbitrary way in which the papers had been re-marked, saying the correct procedure would have been to send them to an external examiner. He complained again on 13 October about the way the examiners had been over-ruled.

The university then held an internal inquiry and published a report in January 2007 which criticized Dr Astin for approving the marking by Mr Hewitt without consulting Professor Buckland. Professor Buckland then said he could not work with Dr Astin any more and resigned in February (although his employment did not finish until 31 July). He claimed unfair constructive dismissal on the ground that he had made a protected disclosure.

Tribunal decision

The tribunal decided that the actions of Dr Astin amounted to a fundamental breach of Professor Buckland’s contract of employment; because “it was an act calculated to destroy the relationship of trust and confidence between the Claimant and the University”.

It found that the internal inquiry had failed to cure the original breach and that the university was therefore guilty of a fundamental breach of contract. Professor Buckland had not affirmed the contract by delaying his resignation and he had therefore been constructively dismissed.

The university appealed that decision on the basis that there can only be a fundamental breach when the actions of the employer fall outside the band of reasonable responses open to them.

EAT decision

The EAT rejected that approach, but did find in favour of the University. It said that when deciding whether an employer was in fundamental breach of contract, the range of “reasonable responses” test in “ordinary” unfair dismissal claims did not apply.

Instead, tribunals had to follow the House of Lords decision in Malik v BCCI. This required the employee “to show that the employer has, without reasonable and proper cause conducted himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between them”.

In this case, the EAT said that the tribunal had been entitled to find that the University was in fundamental breach of Professor Buckland’s contract. And that he was entitled to resign on notice (as opposed to on the spot) and claim constructive dismissal.

However, the breach had been “cured” by the inquiry which criticised Dr Astin and exonerated Professor Buckland. The tribunal was wrong to apply the subjective test of whether Professor Buckland himself felt he had been cleared by the inquiry. Had they applied an objective approach, they would have concluded that the breach had been remedied so that when Professor Buckland resigned, the university was no longer in breach of contract.

The University’s appeal therefore succeeded as there was no dismissal.