Buckland v Bournemouth University Higher Education Corp

Factual and Procedural Background

This case arises from a dispute between the Plaintiff, an academic holding a chair in environmental archaeology at the Defendant university, and the Defendant concerning the marking of students' examination papers in 2006. The Plaintiff failed 14 of 16 resit exams he marked, which were second-marked and later re-marked without his authority, leading to allegations undermining his integrity. An internal inquiry was held, which vindicated the Plaintiff on the marking issue but did not fully restore his reputation. Dissatisfied, the Plaintiff resigned and brought proceedings alleging unfair constructive dismissal.

The Employment Tribunal found that the Defendant had committed a fundamental breach of the implied term of mutual trust and confidence by authorising the re-marking without the Plaintiff's consent, constituting a repudiatory breach. However, the tribunal also considered whether the internal inquiry report had cured the breach and concluded it had not. The Employment Appeal Tribunal (EAT) allowed the Defendant's appeal, holding that the breach had been objectively cured by the inquiry report, and therefore no constructive dismissal occurred. The Plaintiff appealed, and the Defendant cross-appealed on legal tests applicable to repudiatory breaches.

Legal Issues Presented

1. Whether the conduct of an employer committing a fundamental breach of contract is to be judged by a unitary objective test or by a "range of reasonable responses" test.
2. Whether an employer who has committed a fundamental breach can cure the breach while the employee is considering whether to treat it as a dismissal.
3. If cure is possible, whether the tribunal’s conclusion that the breach was not cured was legally sound and factually tenable.
4. Whether the Defendant advanced a triable case that, if there had been a constructive dismissal, it was fair.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff contended that the correct legal test for repudiatory breach is a single objective test, not the "range of reasonable responses" test.
• The Plaintiff argued that the law does not recognise a doctrine permitting an employer to cure a completed repudiatory breach before acceptance by the employee.
• The Plaintiff maintained that the tribunal’s conclusion that the breach had not been cured was legally and factually correct, relying on the subjective impact on his integrity and the insufficiency of the inquiry report’s vindication.
• The Plaintiff disputed the Defendant’s contention that the dismissal, if any, was fair.

Defendant's Arguments

• The Defendant contended that the employer’s conduct should be assessed by the "range of reasonable responses" test, which would place their conduct within acceptable bounds.
• The Defendant argued that the breach had been cured objectively by the internal inquiry report, negating the claim of constructive dismissal.
• The Defendant sought to establish that even if constructive dismissal occurred, there was a triable case that the dismissal was fair, warranting a remit to the tribunal on this issue.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mahmud v BCCI [1998] AC 20	Objective test for fundamental breach of implied term of trust and confidence in employment contracts.	The court endorsed the "unvarnished Mahmud test" as the correct approach to determining repudiatory breach, rejecting the "range of reasonable responses" at this stage.
Western Excavating v Sharp [1978] ICR 221	Distinction between objective repudiatory breach and unreasonableness; confirmed objective test for constructive dismissal.	Supported rejection of applying "range of reasonable responses" to the fundamental breach stage.
W.E. Cox Toner Ltd v Crook [1981] ICR 823	Principles relating to repudiation and acceptance, including reservation of rights during continued performance.	Cited to illustrate that further performance with reservation does not prejudice acceptance rights; no doctrine of cure of completed repudiatory breach.
Stocznia Gdanska S A v Latvian Shipping Co Ltd (No 2) [2002] 2 Ll Rep 236	Clarification of rights during the period between repudiation and acceptance.	Supported the proposition that anticipatory breaches can be withdrawn before acceptance, but completed breaches cannot be cured unilaterally.
Miles v Wakefield District Council [1987] 1 AC 539	Application of general contract law principles to employment contracts, especially concerning partial withdrawal of services.	Reinforced that employment contracts are subject to general contract law rules on repudiation and acceptance.
Abbey National plc v Fairbrother [2007] IRLR 320	Consideration of employer conduct and the "range of reasonable responses" test in dismissal cases.	Referenced by Defendant’s counsel to support applying "range of reasonable responses" at repudiatory breach stage, but rejected by the court.
Claridge v Daler Rowney Ltd [2008] ICR 1267	Qualified application of "range of reasonable responses" test in employment law.	Also cited by Defendant but court found this approach incompatible with settled authority.
Amnesty International v Ahmed [2009] ICR 1450	Commentary on the inappropriateness of applying the "range of reasonable responses" test to constructive dismissal.	Supported the court’s view that the test is unhelpful at the repudiatory breach stage.
Sainsbury v Hitt [2003] IRLR 23	Application of fairness and "range of reasonable responses" test at the stage of assessing dismissal fairness.	Referenced as the appropriate stage for applying the "range of reasonable responses" test.
Farnworth Finance Facilities Ltd v Attryde [1970] 1 WLR 1053	Principle that continued performance with reservation preserves right to accept repudiation.	Cited to confirm that acceptance or affirmation remains with the innocent party despite continued performance.

Court's Reasoning and Analysis

The court carefully analysed the legal tests applicable to fundamental breaches of employment contracts, focusing on the implied term of mutual trust and confidence. It rejected the Defendant’s submission that the "range of reasonable responses" test applies to determine whether a fundamental breach has occurred. Instead, it reaffirmed the established objective test from Mahmud and Western Excavating, whereby a breach occurs when the proscribed conduct objectively takes place, regardless of whether it was reasonable.

The court acknowledged that reasonableness is relevant at the fairness stage under statutory provisions but not at the repudiatory breach stage. It also considered whether a repudiatory breach can be cured by the employer before acceptance by the employee. The court found no precedent supporting such a doctrine and declined to introduce it, reasoning that a completed breach cannot be undone, unlike an anticipatory breach which may be withdrawn before acceptance.

The tribunal’s finding that the breach was not cured by the internal inquiry report was held to be objectively tenable and not legally flawed, as the report did not provide the explicit vindication necessary to rectify the breach. The court emphasised the personal and sensitive nature of employment contracts, noting that while employers may seek to make amends, the choice to affirm or terminate remains with the employee.

Regarding the fairness of any constructive dismissal, the court found that the issue was moot given the acceptance of the appeal on repudiatory breach and cure. It also noted that the Defendant’s attempt to justify its conduct as fair was logically inconsistent, as it denied having dismissed the Plaintiff.

Finally, the court expressed a preference for avoiding unnecessary remittals to the tribunal when the appellate court is well positioned to decide the matter, to prevent prolonged litigation and additional costs.

Holding and Implications

The court’s final decision was to ALLOW THE APPEAL and DISMISS THE CROSS-APPEAL, thereby restoring the Employment Tribunal’s original determination that the Defendant committed a fundamental breach of contract which was not cured, resulting in constructive dismissal.

The direct effect is that the Plaintiff’s claim for unfair constructive dismissal stands, and the Defendant’s appeal on the legal tests and cure doctrine fails. The court did not establish any new legal doctrine permitting cure of repudiatory breaches in employment contracts, reaffirming the longstanding principle that such breaches cannot be unilaterally cured once committed. The decision clarifies the proper application of legal tests in employment law and reinforces the employee’s autonomy in electing to accept repudiatory breaches.