Buckland v Bournemouth University 2010 EWCA 121

Professor Buckland was employed by Bournemouth University and had resigned after the head of the department confirmed the outcome of a re-marking exercise of his students’ papers undertaken without consulting him. The Tribunal upheld Professor Buckland’s constructive dismissal claim. The conduct of procuring and re-marking exam papers without consulting Professor Buckland was a fundamental breach of the implied contractual terms of mutual trust and confidence and the report by Professor Vinney, which subsequently vindicated him before his notice expired, did not cure the breach.

The EAT disagreed holding that Professor Vinney’s report had cured the breach. The Court of Appeal agreed with the Tribunal’s decision. It held that in determining whether an employer was in fundamental breach of the implied term of trust and confidence the employee had to show that the employer had without reasonable and proper cause conducted itself in a manner calculated or likely to destroy the relationship of trust and confidence between them.

That conduct had to go beyond unreasonable conduct on the employers’ behalf so as to amount to breach of contract. It remained open for the employer to show that the dismissal was for a potentially fair reason and if it did so a Tribunal would have to decide whether the dismissal for that reason was both substantively and procedurally fair. In this case the slur on his integrity remained despite his vindication in Professor Vinney’s report.

Key point: There is no doctrine to the effect that a party in default can unilaterally cure their repudiatory breach. Conduct alleged to amount to a fundamental breach of contract is not assessed by reference to the range of reasonable responses test but must be objectively assessed.