Buckland – the last word?
James Medhurst | News
23 Apr 2010
The judgment of the Employment Appeal Tribunal in Burton, McEvoy and Webb v Curry is a brilliant and extremely useful clarification of the decision of the Court of Appeal in Buckland v Bournemouth University, discussed here. It fills in most of the gaps and answers most of the questions begged by the earlier case.
Firstly, at paragraph 17, President Underhill unpacks the ‘toolkit’ of Lord Justice Sedley and notes that an employer will generally have reasonable and proper cause for an act that is reasonable, even one that happens to damage trust and confidence and, moreover, if an act is unreasonable, this will be material to the question of whether or not it damages trust and confidence. He goes on to spell out the important difference between a breach of an express contratual term, where reasonableness is entirely irrelevant (following Sharp v Western Excavating), and a breach of the implied term, where it is of great relevance.
Paragraph 18 notes that, although tribunals must consider the fairness of any constructive dismissal, it is hard to see how a breach of the implied term can be said to be within the reasonable range of responses, given that reasonableness will usually have already been considered at an earlier stage. This seems fairly obvious to me but is sometimes contested and I believe that Curry is the first clear authority on the point.
In commenting on the Court of Appeal decision in the ‘Highlights’ section of the Industrial Relations Law Reports, Michael Rubenstein suggests that the ‘reasonableness’ in the toolkit of Lord Justice Sedley must be different from a range of reasonable responses test. This appears to be predicated on the assumption that a range test is subjective, and so would be inappropriate for considering objectively whether there has been a breach of the implied term. However, President Underhill deals with this point as well, at paragraph 25, stating that a range of reasonable responses is inherent in the concept of reasonableness. There is often more than one course that it would be objectively reasonable to follow so the test is not subjective.
There is one question that remains, which goes back to the case of Abbey National v Fairbrother itself. As I have said before, although Lady Smith started off the whole argument about the range of reasonable responses test, it is not quite clear that this was what she really meant. By referring to Whitbread v Mills, she seems to have been alluding to the principle from unfair dismissal law that there can be elements of unreasonableness leading to a dismissal without always making it unfair. It is much more questionable whether this applies to constructive dismissal situations although there are undoubtedly parallels with the conclusion in Sharp that mere unreasonableness will be insufficient to make out a constructive dismissal.
Of particular interest would be a situation in which an employer mishandles a grievance to the extent that trust and confidence is destroyed but holds an immaculate appeal upholding the grievance. The analogy with unfair dismissal suggests that the grievance procedure should be treated as having been reasonable but Buckland says that a fundamental breach cannot be cured and so the employee would still succeed in establishing constructive dismissal. Lord Justice Carnwath suggested during argument in Buckland that this could be one of those highly exceptional cases in which a dismissal that results from a breach of the implied term of trust and confidence could nevertheless be fair. However, President Underhill appears to close the door on this possibility, at paragraph 18, by endorsing Berriman v Delabole Slate, which makes it clear that events after a repudiatory breach are not taken into account in assessing fairness. Therefore, this is one area in which a constructive dismissal has to be treated differently from an actual dismissal.