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

constructive dismissal | “range of reasonable responses” test | curing repudiatory breaches

The Court of Appeal has held that the “range of reasonable responses” test is not appropriate for deciding whether or not there has been a repudiatory breach of contract in constructive dismissal cases and an employer cannot cure a repudiatory breach of contract before an employee decides to resign.

Professor Buckland, who worked at Bournemouth University, marked exam papers that were second checked by a second marker to ensure consistency. In 2006, Professor Buckland failed 14 students, a high number of failures but results that were later confirmed by a second marker. The results were further checked and confirmed by the board of examiners. However, the leader of the course chose to have the papers remarked without consulting Professor Buckland. Although a subsequent inquiry vindicated Professor Buckland’s original marks, he resigned and claimed constructive dismissal.

The employment tribunal confirmed that Professor Buckland had been constructively dismissed, on the ground that not consulting him on the remarking of the papers had destroyed the relationship of trust and confidence that is implicit in contracts of employment. In addition, the tribunal said that the subsequent inquiry had not cured the original breach.

However, the Employment Appeal Tribunal (EAT) overturned the tribunal decision on the ground that the subsequent inquiry had cured the original breach. Professor Buckland appealed to the Court of Appeal, which was also asked to consider whether or not the “range of reasonable responses” test is appropriate for deciding whether or not there has been a repudiatory breach of contract in constructive dismissal cases.

The Court of Appeal said that there was no authority to support the EAT’s assertion that a repudiatory breach can be remedied in constructive dismissal cases. The Court of Appeal said that, while this could create injustice, it could not justify “releasing the contents of this Pandora’s box into contract law”.

The Court of Appeal also approved the EAT's four-stage summary of the correct test to establish constructive dismissal, holding that the "range of reasonable responses" test has no place in deciding whether or not there has been a repudiatory breach of contract. The test for establishing constructive dismissal is objective. Although reasonableness is a factor that tribunals may take into account in finding a repudiatory breach, it is not a legal requirement.

Case transcript of Buckland v Bournemouth University Higher Education Corporation (on the BAILII website)

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