I made quite a number of posts last year about the case of Bournemouth University v Buckland at the Employment Appeal Tribunal. I am not a fan of the decision which, among other things, says that it is wrong to introduce a range of reasonable responses test into the question of whether there has been a breach of the implied term of trust and confidence. This conclusion has found favour in some quarters but Judge Peter Clark also makes two more controversial claims, firstly, that constructive dismissals founded upon a breach of the implied term can sometimes be fair, and, secondly, that such a breach can be remedied fairly easily by, for example, a favourable finding in a grievance investigation. It is these two issues that are the subject of an appeal to the Court of Appeal, which is due to be heard on 8th or 9th February, and it is possible that the Court of Appeal will not have to deal with the range of reasonable responses point at all. However, in my view, it is now time for constructive dismissal to be re-examined in order to try to create a coherent whole and so, in reality, the contentions in Buckland cannot be divorced from one another. In the coming weeks, I shall outline my position on the subject.

I want to start by setting out the scope of the discussion. Judge Clark says of the range of reasonable responses that either, “it adds nothing, in which case it is superfluous; or it alters the House of Lords test” in Malik v BCCI. I wish to make clear from the outset that I have no problem with the suggestion that it adds nothing or very little to the Malik test. Indeed, I would go so far as to say that it follows logically from Malik that an act that is within the range of reasonable responses of an employer cannot possibly breach the implied term. I also note the position taken by the Employment Appeal Tribunal in several of its decisions, which are largely in agreement with the rejection of the range of reasonable responses test in Buckland but state that cases in which a reasonable act breaches the implied term will be exceptional. The latest example is the judgment of Judge Serota in NSPCC v Dear, handed down today. I cannot personally conceive of a real situation in which such an exception would ever apply but the importance of these authorities is their confirmation that there is a high bar for a claimant to reach.

Therefore, the focus on my criticism of Buckland is that I am far from convinced that it does accept the existence of quite such a high bar. The strongest evidence of this emerges from those conclusions that have led Professor Buckland to take the case to the Court of Appeal. By suggesting that a breach of the implied term of trust and confidence can often be fair and by suggesting that it is easy to cure, it is treating such a breach as a trifle and trivialising the importance of trust between an employer and an employee. That is the issue which is going to be at the core of my argument over the next four weeks.