[Thanks to Emma Price of 1 Temple Gardens for providing this case summary]
The Court of Appeal has handed down its decision in Buckland v Bournemouth University, which is authority for the proposition that:
i) the correct test when an employer is said to have committed a fundamental breach on contract of employment is a unitary one and not a "range of reasonable responses" test;
ii) an employer who has committed a fundamental breach cannot "cure" it whilst the employee is considering whether to treat it as a dismissal.
The Claimant, a Professor in archaeology at the Defendant University, resigned claiming constructive unfair dismissal after exam papers he had marked were subject to re-marking by the chairman of the board of examiners. After the re-mark and before the resignation, an Inquiry set up by the Defendant University vindicated the Claimant and criticised the marking procedures in place.
The ET held that the re-mark amounted to a fundamental breach on contract and that the Inquiry did not "cure" the breach.
The EAT rejected the University's contention that the correct test for repudiatory breach of contract by an employer was a reasonable range of responses test, commending a return to settled authority and an objective test and upholding this part of the ET's decision. However, the EAT found that the breach had been "cured" by the Inquiry.
The Court of Appeal upheld the EAT's findings as to the correct test to be applied for repudiatory breach, endorsing its conclusions and reasoning but allowed the appeal against the EAT's decision that the breach had been cured. Once a breach has been done, it cannot be undone.
Introduction into employment law of the principle that where there has been a fundamental breach, that is curable and cured, an innocent party loses the option of acceptance of repudiation could only be done on grounds capable of extension to other contracts. There was no justification for this.
Also of note in this case, Lord Justice Jacob concluded with a criticism of "Ping pong", the practice of sending cases back to the tribunal or court below as anything other than a last resort, noting that it generally serves litigants badly, prolongs things and increases costs.