Constructive dismissal cannot be cured.

By | April 1, 2010

Constructive dismissal cannot be cured.

In Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, the claimant resigned and brought a claim for constructive dismissal many months after a fundamental breach of contract by his employer, the University.

The claimant delayed his resignation in order to fulfil his obligations to his students and to see if the University could make amends for the breach.

The Court of Appeal held, amongst other things, the following:

*       An employer who is said to have committed a fundamental breach of the contract of employment is not to be judged by a “range of reasonableness responses” test; and

*       An employer who has committed a fundamental breach of contract cannot cure (remedy) the breach while the employee is considering whether to treat it as a dismissal.

What does this mean?

The Court considered that once an employer has committed a fundamental breach which entitles the innocent party to walk away from it, there is no reason for the law to take away the innocent party’s right to leave. The employer can try to make amends – to persuade the wronged party to affirm (accept) the contract, but the option to leave should be entirely at the wronged party’s choice.

This common law rule spells out clearly that if a party to a contract actually commits a fundamental breach, then whether the contract continues is completely out of their hands.

In the context of employment law it means that employers know that if they treat an employee so badly and by doing so commit a fundamental breach, then they cannot keep the employee unless they can persuade him or her to decide to stay.

Further, the Court of Appeal considered that when an employer has committed a fundamental breach, the employee should be allowed some time while they consider their position. Ideally a wronged employee who stays on for a bit would say so expressly. But even that would be difficult and it is not realistic to suppose it will happen very often. For that reason the law looks carefully at the facts before deciding whether there has really been an affirmation.

John Clarke

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