Employment Law Advocates

The decision of the Court of Appeal can be found here. The reasoning on the ‘curing the breach’ point¬†is pretty much as¬†argued in the appeal,¬†which is¬†set¬†out in my previous post. On the ‘reasonable range of responses’ point, the approach of the Employment Appeal Tribunal¬†has¬†largely been¬†upheld, but with¬†a caveat, per Lord Justice Sedley,¬†that, “It is nevertheless arguable, I would accept, that reasonableness is one of the tools in the employment tribunal’s factual analysis kit for deciding whether there has been a fundamental breach. There are likely to be cases in which it is useful.”¬†It seems to follow that, while a tribunal does not have to direct itself to the reasonable range of responses, it equally does not err if it takes this into account in finding that there is no fundamental breach, as in Claridge v Daler Rowney.

Nor can a dismissal that arises from such a situation ever be fair, at least if one applies the reasoning in paragraph 47 that an employer cannot possibly justify an act which it denies has occurred. As I have never known an employer to admit to a breach of the implied term of trust and confidence, this means that there is little scope for defending a case once a breach of the term has been found. I think that this is entirely right both as a matter of legal certainty and of industrial reality but it does demonstrate the importance of having an approach to testing for a breach which is both consistent and open to scrutiny.

The problem is that whether or not there is a constructive dismissal is a matter of fact and is difficult to overturn on appeal. The¬†aim of Abbey National v Fairbrother¬†was to prevent such findings on whimsical grounds and, now Fairbrother has been overturned, it is¬†unclear how¬†a similarly questionable decision could be challenged.¬†I would argue that this can be¬†done by allowing the range of reasonable responses test¬†to be be used as part of the ‘toolkit’ of the appellate courts. Even if a tribunal has directed itself correctly, an analysis based on reasonableness may lead to a conclusion that¬†its decision is perverse.