Bournemouth University Higher Education Corporation v Buckland EAT/0492/08

unfair constructive dismissal | range of reasonable responses test

The Employment Appeal Tribunal (EAT) has held that the "range of reasonable responses" test does not apply to constructive dismissal.

Professor Buckland resigned after his students’ examination papers, which he had marked, were re-marked without him being consulted. The University had conducted an inquiry into the re-marking incident and he resigned after the inquiry’s conclusion. He claimed unfair constructive dismissal. The employment tribunal upheld his claim. In confirming the changed marks, the University had fundamentally breached an implied term of Professor Buckland’s contract of employment. Changing the marks was an act calculated to destroy the relationship of trust and confidence between it and Professor Buckland. Further, the inquiry did not cure the original breach.

The University appealed. Referring to Claridge v Daler Rowney Ltd [2008] IRLR 672 EAT, it argued that an employee can show a fundamental breach of the implied term of trust and confidence only where the employer’s actions fall outside the band of reasonable responses open to it. Reviewing past case law, the EAT agreed with Professor Buckland’s argument that the “range [of reasonable responses]” test does not apply to constructive dismissal. When deciding whether or not there has been a fundamental breach of the implied term of trust and confidence, the test in Malik and another v Bank of Credit and Commerce International SA (in compulsory liquidation) [1997] IRLR 462 HL should be applied. The employee needs to be able to show that the employer, without good reason, conducted itself in way that was calculated, or likely, to destroy or damage the relationship of confidence and trust between them. If, applying the principles in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 CA, acceptance of the breach entitled the employee to resign, there was a constructive dismissal. The employer can show that a constructive dismissal was for a potentially fair reason. If it does so, it is for the employment tribunal to decide whether or not the dismissal for that reason fell within the range of reasonable responses. The EAT held that the employment tribunal in this case was entitled to find that, by accepting the re-marking of Professor Buckland’s students’ exam papers without consulting him, the University had fundamentally breached his contract of employment. Its conduct was calculated, or likely, to undermine trust and confidence.

However, the EAT allowed the appeal on the grounds that the tribunal had been wrong to find that the University had not cured the breach through its inquiry. The tribunal had erred by applying a subjective test and considering whether or not Professor Buckland felt exonerated by the inquiry, rather than approaching the matter objectively, on the facts. Therefore, when Professor Buckland resigned, the University was no longer in repudiatory breach of contract. As a result he was not constructively dismissed.

Case transcript of Bournemouth University Higher Education Corporation v Buckland (Microsoft Word format, 97.5K) (on the EAT website)

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