I went to the Court of Appeal on Monday and I heard some fascinating arguments. It seems that the question of whether trust and confidence can be restored after being destroyed could become moot as, according to Robin White, for Professor Buckland, there is no authority for the more general proposition that a repudiatory breach of contract can be cured by the wrongdoer, as opposed to being affirmed by the wronged party. The authorities cited by Employment Appeal Tribunal apparently say no more than that an anticipatory breach can be remedied. Also, while an employee is entitled to give an employer a chance to make amends, without affirming the contract, there is no obligation to accept what is done.

There is also a problem with the finding that the Tribunal wrongly applied a subjective test in deciding whether the breach had been cured. It is difficult to comment without having seen the judgment but the submission by Robin White was that the Tribunal repeatedly said that Professor Buckland was “entitled” to be dissatisfied with the handling of his complaint, and so they had applied an objective test after all.

In an earlier post, I questioned whether it was possible for a dismissal brought about by a breach of the implied term to ever be fair but Lord Justice Carnwath floated an interesting possibility in his discussions with counsel. If a repudiatory breach is incapable of being cured then it follows that events after the breach, but before the breach is accepted, cannot be considered in deciding whether an employee is entitled to resign. This means that, if these events can be taken into account in deciding whether the dismissal is fair, as permitted according to Savoia v Chiltern Herb Farms, then the two questions may well produce quite different answers. However the parties agreed that the decision in Berriman v Delabole Slate, in which the reason for the dismissal is defined as the reason for the repudiatory conduct, is regarded as being more orthodox, and it will be interesting to see if this idea makes its way into the final judgment.