Constructive Dismissal

Unjustifiable and Impossible to 'Cure'

In Buckland v Bournemouth University, the Court of Appeal has clarified the law concerning the position of an employer who has committed a repudiatory breach of contract which has, in turn, led to an employee resigning from his or her post and claiming constructive dismissal.

The case concerned a university professor whose position had been undermined by his employer arranging for someone else to check his work, without his consent. As soon as it realised its mistake, the employer ordered an inquiry into how this had happened which entirely vindicated the employee. However, the employee had already given notice of his intention to resign and claim constructive dismissal.

The two issues before the EAT were –

how far is an employer in such a case allowed to suggest that its action was 'within the range of reasonable responses' as it would do in an 'ordinary' unfair dismissal case; and whether an employer's repudiatory breach can be 'cured' (as in this case, by the establishment of the inquiry) so that the employee would not then be justified in resigning and claiming constructive dismissal. The EAT found against the employer on both points. If the employer's action amounted to a repudiatory breach, it was not necessary for a tribunal to enquire any further at this stage whether the employer's action was within the range of reasonable responses. Furthermore, once such a breach had been committed, it could not be undone by the party in breach. From that point, it was entirely in the hands of the wronged party (the employee) to decide whether to continue with ('affirm') the contract or not. In this case...