The claimant had been dismissed from his post as chair of archeology after criticism of his marking practices. Though a report vindicated him, the respondent continued with disciplinary procedures. He claimed unfair dismissal. The EAT had allowed the university’s appeal saying that the found repudiatory breach had been remedied before the resignation. The University now said that its response was within the range or reasonable responses open to it.
Held: The employee’s appeal was allowed. The court was asked whether the conduct of an employer who is said to have committed a fundamental breach of the contract of employment is to be judged by a unitary test or a ‘range of reasonable responses’ test, and whether an employer who has committed a fundamental breach of contract can cure the breach while the employee is considering whether to treat it as a dismissal. Once an employer had repudiated the employment contract it was not open to it to cure that repudiation.
Sedley LJ said; ‘I would accept, that reasonableness is one of the tools in the employment tribunal’s factual analysis kit for deciding whether there has been a fundamental breach. There are likely to be cases in which it is useful. But it cannot be a legal requirement. Take the simplest and commonest of fundamental breaches on an employer’s part, a failure to pay wages. If the failure is due, as it not infrequently is, to a major customer defaulting on payment, not paying the staff’s wages is arguably the most, indeed the only, reasonable response to the situation. But to hold that it is not a fundamental breach would drive a coach and four through the law of contract, of which this aspect of employment law is an integral part.
Where, if at all, the reasonableness of the employer’s conduct may enter the picture is through the statutory additions to the law of contract. ‘ and
‘the statutory provision for justification of a dismissal appears at more than one point not to fit constructive dismissal, notwithstanding the express inclusion of constructive dismissal in the statutory scheme. But, reverting to my example, if the employer could satisfy a tribunal that, albeit not a listed reason, the unexpected lack of funds amounted to some other substantial reason for dismissal within s. 98(1), and that in all the circumstances the employer had ‘acted reasonably in treating it as a sufficient reason for dismissing the employee’ as required by s. 98(4), it might be arguable that the claim should fail. ‘
As to whether a repudiation could be remedied, ‘if we were to introduce into employment law the doctrine that a fundamental breach, if curable and if cured, takes away the innocent party’s option of acceptance, it could only be on grounds that were capable of extension to other contracts, and . . I do not consider that we would be justified in doing this. That does not mean, however, that tribunals of fact cannot take a reasonably robust approach to affirmation: a wronged party, particularly if it fails to make its position entirely clear at the outset, cannot ordinarily expect to continue with the contract for very long without losing the option of termination, at least where the other party has offered to make suitable amends.’
Jacob LJ dissented in part, finding that a party could not cure a repudiatory breach: ‘I do not share Sedley LJ’s regret in holding that a repudiatory breach of contract, once it has happened, cannot be ‘cured’ by the contract breaker. Once he has committed a breach of contract which is so serious that it entitles the innocent party to walk away from it, I see no reason for the law to take away the innocent party’s right to go. He should have a clear choice: affirm or go. Of course the wrongdoer can try to make amends – to persuade the wronged party to affirm the contract. But the option ought to be entirely at the wronged party’s choice.
That has been the common law rule for all kinds of contract for centuries. It works. It spells out clearly to parties to contracts that if they actually commit a repudiatory breach, then whether the contract continues is completely out of their hands. The rule itself discourages repudiatory breach. In the context of employment law it means that employers know that if they treat an employee so badly as to commit a repudiatory breach, then they cannot hang on to the employee unless they can persuade him or her to decide to stay.’
Sedley LJ, Carnwath LJ, Jacob LJ
[2010] 4 All ER 186, [2010] EWCA Civ 121, Times 03-May-2010, [2010] IRLR 445, [2010] ICR 908, [2011] 1 QB 323, [2010] 3 WLR 1664
Bailii
Employment Rights Act 1996 94 95
England and Wales
Citing:
Appeal from – Bournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
Cited – Western Excavating (ECC) Ltd v Sharp CA 1978
To succeed in a claim for constructive dismissal the plaintiff must establish a breach of contract by the defendant, that the breach was sufficiently serious to have justified the claimant resigning, or at least be the last in a series of events . .
Cited – Amnesty International v Ahmed EAT 13-Aug-2009
amnesty_ahmedEAT2009
EAT RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of . .
Cited – Farnworth Finance Facilities Ltd v Attryde 1970
Mr A bought a motor-cycle on hire-purchase. Mr Attryed had ridden this bicycle for 4,000 miles. Even after he got it back from the makers he had used for five or six weeks and had ridden 3,000 miles on it. He had complained from the beginning of the . .
Cited – W E Cox Toner (International) Ltd v Crook EAT 1981
In a case of constructive dismissal, the ordinary contractual rule applies; the wronged party may give the other party an opportunity to remedy the breach. In doing so he does not waive the breach and thereby affirm the contract.
Cited – Claridge v Daler Rowney Ltd EAT 4-Jul-2008
EAT UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal held the employee had not been constructively dismissed. One of the complaints related to defects in the handling of the grievance . .
Cited – Farnworth Finance Facilities Ltd v Attryde 1970
Mr A bought a motor-cycle on hire-purchase. Mr Attryed had ridden this bicycle for 4,000 miles. Even after he got it back from the makers he had used for five or six weeks and had ridden 3,000 miles on it. He had complained from the beginning of the . .
Cited – Abbey National Plc v Fairbrother EAT 12-Jan-2007
EAT Unfair Dismissal
Disability discrimination
The Tribunal had found a dismissal to be unfair because of flaws in a grievance procedure, following which the Claimant had resigned. They also found . .
Cited – Miles v Wakefield Metropolitan District Council HL 1987
The claimant was a superintendent registrar of Births Deaths and Marriages. His union instructed him not to conduct weddings on Saturdays. He had been told that if he failed to perform his full range of duties on a Saturday (including marriages), he . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited by:
Cited – Drs Burton, Mcevoy and Webb (A Partnership) v Curry EAT 21-Apr-2010
EAT UNFAIR DISMISSAL – Constructive Dismissal
UNFAIR DISMISSAL – Polkey Deduction
STATUTORY GRIEVANCE PROCEDURE – Impact on Compensation
Claimant employed as Practice Manager of a partnership of . .
Cited – Assamoi v Spirit Pub Company (Services) Ltd EAT 30-Jul-2012
assamoi_spiritEAT2012
EAT UNFAIR DISMISSAL – Constructive dismissal
The Claimant worked as a head chef. He had rather a turbulent period of employment with his employer. The Tribunal made a finding that the Claimant’s manager had . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 11 November 2021; Ref: scu.401790