More about constructive dismissal
04 Jul 2009
By James Medhurst
The case of Nationwide Building Society v Niblett is another well-reasoned decision by Judge Richardson which will hopefully clear up some confusion about the case of Bournemouth University v Buckland that I have highlighted in a previous post. Firstly, it emphasises that the Fairbrother line of cases, which appear to bring the reasonable range of responses test into constructive dismissal law, do not encroach upon the trust and confidence approach. Even if an employer has acted outside the range of reasonable responses, the tribunal must still determine whether or not trust and confidence has been breached.
While refusing to be drawn on the correctness or otherwise of Buckland, the judgment states that, “We find it very difficult to envisage circumstances in which an employer will be in breach of the implied term of trust and confidence unless the employer’s conduct has been unreasonable. The mere fact of unreasonable conduct is, as we hope we have demonstrated, never sufficient,” which is perfectly consistent with the approach taken by Lord Denning in the famous case of Western Excavating v Sharp.
In my view, the major source of the confusion is the idea that being outside the reasonable range of responses means something more than merely being unreasonable, an idea that is thoroughy rejected in this case. Judge Richardson states that a range of reasonable responses means nothing more than that there is more than one reasonable way of doing things. An analogy can be drawn with negligence where, in road traffic accident cases, there is usually only assumed to be one thing that a reasonable driver would do while, in clinical negligence cases, there may be more than one reasonable body of medical opinion which a doctor could follow. Managing employees is more complicated than driving but is probably less complicated than medicine so the decisions of employers are somewhere in between.
However, this does not quite explain the decision in Fairbrother because, in that case, the tribunal had found that the employer had acted unreasonably. The problem is that, although the Employment Appeal Tribunal referred to a range of reasonable responses, it was really applying a distinct but overlapping concept of unfair dismissal law, the idea that a process can overall be fair, notwithstanding the fact that it contains elements of unreasonableness. For example, a botched dismissal can be rendered fair if it is upheld after an appeal that is conducted properly. This is the real controversy of Fairbrother, although even then it can be argued that cases where a fair process breaches trust and confidence will be very rare. After all, when they are considered objectively, fairness and trust are strongly related concepts.
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