Buckland v Bournemouth University Higher Education Corp

Whether an employer has committed a repudiatory breach for the purpose of constructive dismissal is determined objectively under ordinary contractual principles. The statutory range of reasonable responses test does not qualify that inquiry. It arises only when considering whether an established dismissal was fair.

A completed repudiatory breach cannot be cured unilaterally. Subject to affirmation or waiver, the innocent party retains the choice to accept the breach and terminate the contract. The contract-breaker may offer amends, but cannot thereby remove that choice.

The appellant, a university professor, resigned after the respondent had procured and accepted an unauthorised re-marking of examination scripts. An internal inquiry later vindicated his position to a significant extent.

An employment tribunal found that the re-marking was a fundamental breach of the implied term of mutual trust and confidence, that the claimant had not affirmed the contract, and that the inquiry had not cured the breach. It did not determine statutory fairness. The Employment Appeal Tribunal, in [2009] ICR 1042, upheld the finding of breach but held that the inquiry had cured it and that the tribunal had applied an impermissibly subjective test.

The appeal concerned the correct test for repudiatory conduct, whether a completed breach could be cured before acceptance, and whether any issue of fairness required remission.

1. The appeal was allowed and the cross-appeal dismissed. The Employment Tribunal's determination of constructive dismissal was restored.

2. The question whether employer conduct amounts to a fundamental breach of the implied term of trust and confidence is an objective contractual question. The Court endorsed the Employment Appeal Tribunal's four-stage analysis: apply the ordinary test for fundamental breach; determine whether the employee accepted it; consider any potentially fair reason; and only then determine statutory fairness. The range of reasonable responses test has no place in the first stage. It concerns fairness after dismissal, not the existence of a repudiatory breach. The Court followed Mahmud v BCCI [1998] AC 20 and Western Excavating v Sharp [1978] ICR 221.

3. The University had committed a repudiatory breach by undermining the claimant's integrity as an examiner. The Tribunal had assessed the effect of the original conduct and of the inquiry objectively. Its conclusion that the inquiry did not adequately rectify the breach was therefore legally sound and tenable. The Employment Appeal Tribunal had no basis to substitute its own view.

4. A completed repudiatory breach cannot be cured by the contract-breaker so as to remove the innocent party's right of election. An anticipatory repudiation differs because, if withdrawn before acceptance, the threatened breach never occurs. After a completed breach, amends may invite affirmation but leave the choice between affirmation and termination with the innocent party.

5. The claimant had not affirmed the contract by awaiting the inquiry or by giving notice which allowed him to complete his responsibilities to students. On the facts, the University had no triable case that its constructive dismissal was fair under Employment Rights Act 1996. It could not sensibly justify as reasonable conduct which it denied having undertaken. No remission was required.

• Court of Appeal (Civil Division): Allowed the claimant's appeal and dismissed the University's cross-appeal. It restored the Employment Tribunal's determination of constructive dismissal.
• Employment Appeal Tribunal: In [2009] ICR 1042, allowed the University's appeal. It upheld the finding of fundamental breach but held that the internal inquiry had cured it before acceptance.
• Employment Tribunal: Found a fundamental breach of the implied term of trust and confidence, no affirmation, and no adequate cure. It did not determine statutory fairness.