Constructive dismissal: breach cannot be cured

Mark Minns, 29 June 2010

The Court of Appeal has held that an employer who commits a serious breach of contract, often referred to as a repudiatory breach of contract, cannot cure the breach before an employee decides whether to treat it as dismissal or not.

Professor Buckland was a university professor in the Archaeology Department of Bournemouth University Higher Education Corporation (the University). Exam papers which had been marked by Professor Buckland were subsequently re-marked without consulting him. Professor Buckland formally complained about the re-marking. The University undertook an enquiry, the outcome of which was set out in a report. Whilst the report exonerated Professor Buckland and instead, criticised the University for approving the re-evaluation of Professor Buckland’s work without consulting him, Professor Buckland resigned and presented a claim for constructive dismissal.

The employment tribunal upheld Professor Buckland’s claim for constructive dismissal noting that the action of re-marking his work without notifying him first amounted to a repudiatory breach of contract which was not ‘cured’ by the inquiry. The Employment Appeal Tribunal (EAT) allowed the University’s appeal on this point holding that the inquiry had in fact ‘cured’ the breach. The EAT also confirmed that the correct test to apply when assessing whether there was a repudiatory breach of contract was an objective one, not a ‘range of reasonable’ responses one as argued by the Univeristy.

The Court of Appeal agreed with the EAT with regard to the correct test to be applied for a repudiatory breach of contract stating that the ‘range of reasonable responses’ test has no place in establishing a repudiatory breach of contract. However, the Court of Appeal stated that once a fundamental breach of contract had occurred, that breach could not be cured.

This was only possible where the breach was anticipatory (i.e. threatened) rather than completed. Professor Buckland’s claim for constructive dismissal was therefore upheld by the Court of Appeal.

Buckland v Bournemouth University Higher Education Corporation [ 2010 ] EWCA Civ 121