Environmental archaeology specialist professor Paul Buckland was employed by Bournemouth University Higher Education Corporation (BUHEC). He resigned in February 2007, but his resignation did not take effect until 31 July 2007.
A substantial number of students failed Buckland’s course and the re-sits which were marked by Buckland and a second marker. On 7 September, the board of examiners confirmed the marks. The programme leader for the University of Archaeology BSc course then re-marked the re-sit papers, criticising the original marking. The board of examiners then arranged for the papers to be re-marked by another member of staff.
On 19 September, Buckland complained to the head of the school about the arbitrary re-marking. This e-mail was found by the employment tribunal to be a qualifying disclosure. On 13 October, Buckland made a second qualifying disclosure complaining about the re-marking. The university’s executive group responded by setting up an enquiry under its Public Interest Disclosure Policy, which published its report in January 2007, criticising the board of examiners for approving the re-marked scores without directly consulting Buckland. Buckland then resigned. He brought a claim for constructive unfair dismissal and automatic unfair dismissal, on the grounds that he had made a protected disclosure.
The employment tribunal held that Buckland had not been automatically unfairly dismissed but that the actions of the head of the board of examiners in confirming the marks given in the re-marking exercise amounted to a fundamental breach of Buckland’s contract of employment, that he did not affirm the contract by delaying his resignation, and that he had been constructively unfairly dismissed.
BUHEC appealed to the Employment Appeal Tribunal (EAT), arguing that if there had been a fundamental breach – which they denied – it was cured by the enquiry’s report or, that by delaying his resignation, Buckland had affirmed the contract. Also, it held that if Buckland had been constructively dismissed, that dismissal was for some other substantial reason and was fair. The EAT considered whether the tribunal ought to have applied a band of reasonable responses test to determine whether BUHEC was in fundamental breach of contract.
The EAT concluded that the band of reasonable responses test had no application in determining constructive dismissal. It is, however, open for the employer to show that the constructive dismissal was for a potentially fair reason, in which case the tribunal will determine whether dismissal for that reason fell within the range of reasonable responses. The tribunal was entitled to find that BUHEC were in fundamental breach of contract. Buckland was entitled to await the outcome of the enquiry before deciding whether or not to accept the breach. However, the breach was cured by the internal enquiry report, which exonerated Buckland. If, however, the breach had not been cured, the fact that Buckland resigned on notice would not have affirmed the contract.
The EAT also found that the tribunal failed to consider the fairness of the dismissal having found that there was a constructive dismissal. As it was, there was no dismissal and the university’s appeal succeeded.
It is usual in constructive dismissal cases for an employee to resign immediately without notice in response to the employer’s alleged repudiatory conduct. This case demonstrates that an employee may still resign on notice without being deemed to have affirmed the contract. However, this will always depend on the relevant circumstances of each individual case. The EAT in this case has also disagreed with other EAT judgments on the application of the band of reasonable responses test in cases of constructive dismissal. Unhelpfully, this creates a divergence of view as to how an employer’s conduct should be assessed and whether a fundamental breach of contract has taken place allowing an employee to claim he or she has been constructively dismissed.
Nicholas Jew, employment partner, DLA Piper