I can confirm that Buckland will be heard at the Court of Appeal tomorrow. Interestingly, there is also a permissions hearing for a cross-appeal by the university so it looks as though the range of reasonable responses point willhave to be considered to some extent although, it has to be said, Fairbrother does not appear to be particularly helpful on the facts of this case. There is an enormous difference between remedying a flawed process with an appeal and trying to remedy a breach of trust with a grievance. It is for this reason that I strongly believe that the appeal by Professor Buckland also ought to succeed.

In a sense, it could be argued that the ameliorative effect of an appeal is an example of a breach of the implied term being fixed and it is, I have to accept, the most plausible contender. Disciplinary action short of dismissal following a shoddy process could give rise to a breach (though many tribunals would find that it does not) which could then be remedied on appeal. This has the unfortunate effect that an employee has an incentive not to appeal but it appears to be a correct statement of the law. However, it is a relatively rare exception which reflects the fact that procedural breaches of trust and confidence are minor. There will also be cases where, if the problems with the process are severe, and are tainted by discrimination for example, they will be impossible to repair. The Employment Appeal Tribunal in this case was wrong to conclude it could decide the matter for itself without remitting it to a tribunal of fact.

Furthermore, a grievance does not work in the same way. Consider a case of sexual harassment where it is clear that a grievance finding that the acts took place, or even the dismissal of the offender, would not be sufficient to restore trust. If it were, it would have deleterious effect on our discrimination law. Now it might be said that, in Buckland, the breach was less serious than this but, if so, it is much more likely that there was no breach at all than that it was cured, and any challenge to the findings of the tribunal ought to have been mounted on that basis, applying Fairbrother if necessary (and if possible). The question of whether or not there is a breach of the implied term is a matter of fact and so, if the Fairbrother challenge fails, there is absolutely no reason to interfere with the findings of the tribunal.

In performing the analysis, unfair dismissal law is undoubtedly helpful, and even Judge Peter Clark is willing to rely upon Roberts v West Coast Trains, in which a dismissal disappeared when an appeal was upheld, as a useful analogy. However, more pertinent is the case of Taylor v OCS Group which warns against legalism and states that the overall effect of a procedure should be considered. Rather than asking whether there is a breach and then asking whether it has been fixed, the question is whether the process is adequate when considered as a whole. This is essentially the approach taken in Fairbrother. It is important to remember that, in several cases, it will be impossible for trust to be restored, at least not until years later. The alarming statement of the Employment Appeal Tribunal that the breach must have been fixed because there is nothing else that the employer could have done must be wrong.