Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Employment lawCase lawConstructive dismissal

Constructive dismissal: Bournemouth University v Professor Buckland

by Personnel Today 16 Jun 2009
by Personnel Today 16 Jun 2009

Bournemouth University Higher Education Corporation v Buckland

Facts

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.

Decision

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 â€“ which they denied â€“ 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.

Implications

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

Personnel Today
Personnel Today

Personnel Today articles are written by an expert team of award-winning journalists who have been covering HR and L&D for many years. Some of our content is attributed to "Personnel Today" for a number of reasons, including: when numerous authors are associated with writing or editing a piece; or when the author is unknown (particularly for older articles).

previous post
Compensation for soldiers harmed by avoidable cold-related injuries
next post
Tender for the Provision of Occupational Health Services

You may also like

AI in employment: the pitfalls and laws on...

21 Sep 2023

CIPD publishes manifesto for good work

20 Sep 2023

Right to predictable working hours receives Royal Assent

19 Sep 2023

Personnel Today Awards 2023 shortlist: Employment Law Firm...

7 Sep 2023

AI taskforce launched to address gaps in law

4 Sep 2023

Strikes Act consultation aims to establish minimum service...

25 Aug 2023

25 years of employment tribunals – a system...

25 Aug 2023

Bank holidays: six things employers need to know

25 Aug 2023

Flexible working legislation: what will the new rules...

16 Aug 2023

Director constructively dismissed by ‘male-dominated’ special effects firm

4 Aug 2023

  • Discover the value of CIPD accreditation PROMOTED | See how the CIPD can increase your earning potential...Read more
  • What does it mean to be an HR professional in 2024? (survey) PROMOTED | The world of HR is changing rapidly...Read more
  • The Contractor Management Mastery Pack: Everything you need to manage and pay global contractors PROMOTED | Answers to cross-border...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2023

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2023 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+