Employment Law Advocates

There has recently been a spate of judgments from the Employment Appeal Tribunal which have recapitulated trite principles such that there has been little of interest to report. This has all changed with the remarkable case of Bournemouth University v Buckland, which reaches two notable conclusions. Firstly, it disapproves three other EAT authorities which state that employers have a reasonable range of responses in constructive dismissal cases. It would seem to follow from this that, contrary to those cases, a slightly flawed grievance procedure can result in a fundamental breach of contract but we are also reminded that constructive dismissals can sometimes be fair.

This sounds straightforward but there is a gap in the analysis. Employment law has created the notion of the implied term of trust and confidence which can be breached by behaviour that is likely to destroy or seriously undermine the relationship between the parties. If this definition is more than just a legal fiction, it would seem to suggest that this is not the type of behaviour which can be considered to be fair in a meaningful sense. It follows from this that a breach of the implied term of trust and confidence is different from other types of fundamental breach and, consequently, that the principles of the latter are not very helpful in trying to understand the former.

But there is more. Judge Peter Clark goes on to state that a fundamental breach of contract can be remedied, accurately citing numerous authorities for this proposition. However, once again, he does not distinguish a breach of the implied term. If an act is really so severe that trust is destroyed, is it really so easy to restore that trust again or is there more likely to be permanent damage to the relationship? The effect of this case is to set a low bar for a finding of constructive dismissal while making it possible to fix, whereas the previous decisions set a higher bar but made the legal consequences of a breach much more severe. I am not comfortable with the shift in the balance which seems to create more legal uncertainty for both employers, who will fear that a breach can be found too easily, and employees, who may now be worried that even very serious breaches can be corrected.