The EAT has confirmed that the "band of reasonable responses" test does not apply to the question of whether an employer has committed a fundamental breach of contract, entitling an employee to resign and claim constructive dismissal (Bournemouth University Higher Education Corporation v Buckland). The EAT held that the actions of the University in arranging for exam papers to be re-marked without first consulting Professor Buckland had been a fundamental breach of contract. It dismissed the University's argument that there could only be a fundamental breach of contract where the employer's actions fell outside the band of reasonable responses open to it. It reiterated that the test for fundamental breach of the implied term of trust and confidence, set out in Mahmud v BCCI, is whether the employer has "without reasonable and proper cause conducted himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between them". If the employee accepts a fundamental breach by resigning, it is then open to the employer to show a fair reason for the dismissal and the "band of reasonable responses" test would then be applied in determining the fairness of the (constructive) dismissal for that reason. In this case, however, an inquiry into the employee's complaint completely vindicated him and therefore cured the fundamental breach. As the employee did not resign until after receiving the inquiry report, there was no constructive dismissal.
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EAT confirms test for constructive dismissal
United Kingdom June 11 2009
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