A reasonable breach

Buckland v Bournemouth University Higher Education Corporation

To succeed in a constructive dismissal claim, employees have to show, among other things, that their employer was in fundamental breach of their contract. In Buckland v Bournemouth University Higher Education Corporation, the Court of Appeal said that tribunals should use an objective test, not the “range of reasonable responses” test, to establish whether the employer was in breach.

Basic facts

In 2006, Professor Buckland failed a high proportion of the students whose papers he had marked. Although the re-sit marks were checked by the board of examiners, another member of the department checked them again and made a number of criticisms. Dr Astin, chair of the board of examiners, 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, saying the correct procedure would have been to send the papers to an external examiner. He also complained about the way the examiners had been over-ruled. The university then held an internal inquiry which criticized Dr Astin for approving the marking by Mr Hewitt without consulting Professor Buckland. Professor Buckland resigned and claimed constructive unfair dismissal.

Tribunal and EAT decisions

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 them; and that the internal inquiry had failed to cure the original breach.

The EAT, however, 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 employees had to show that the employer had “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, but that the breach had been “cured” by the inquiry.

Both sides appealed, arguing that a repudiatory breach could not be “cured”; and that the EAT should have applied a “range of reasonable responses” test.

Court of Appeal

The Court of Appeal agreed with the EAT that the “range of reasonable responses” test was not applicable for constructive dismissal. Instead, it reaffirmed the decision of the Court of Appeal in the 1978 case of Western Excavating v Sharp, which said the test for establishing constructive dismissal is objective. It accepted that “reasonableness is one of the tools in the employment tribunal's factual analysis kit for deciding whether there has been a fundamental breach. .. But it cannot be a legal requirement”.

However, it upheld Professor Buckland’s appeal against the EAT finding that the breach had been “cured”. It said that there was no authority to say that a breach could be remedied and confirmed that “a completed breach, even if it can be compensated for, cannot be undone”.