Today, I am travelling in my DeLorean back to the year 1985, when Mikhail Gorbachev became leader of the Soviet Union, Boris Becker won Wimbledon as an unseeded 17-year-old, and the mobile phone was introduced into the UK by a tiny company called Racal-Vodaphone. Number one singles included ‘Nineteen’ by Paul Hardcastle, ‘The Power of Love’ by Jennifer Rush, and ‘Dancing in the Street’, from the Live Aid concert, by David Bowie and Mick Jagger. In employment law, it was a crucial year in the fight over the correct test for constructive dismissal, one which some say is still being fought in 2009.

The modern orthodoxy was represented by the case of Lewis v Motorworld Garages in the Court of Appeal, which approved the formulation by President Browne-Wilkinson in Woods v W M Car Services, that conduct without reasonable or proper cause, which is calculated or likely to destroy or seriously damage trust and confidence between employer and employee, constitutes a repudiatory breach of contract. There would later be further approval from the House of Lords in Malik v BCCI. The radical alternative, which everyone (?) agrees is now heretical, was expressed in the case of Dutton & Clark v Daly, in which it was suggested that an act by an employer within the reasonable range of responses can never be a repudiatory breach but, more controversially, an act outside the reasonable range of response will always be so. The latter formulation would certainly seem to place the bar too low and makes the test too close to a reasonableness test, whether or not you believe the reasonable range of responses test is just a reasonableness test, and this is inconsistent with Western Excavating v Sharp.

However, the contemporary debate is about whether or not the first part of Daly is correct and, if so, whether or not it is useful. In my view, it must be correct because, if Daly is setting the bar too low, anything that does not even pass the Daly test cannot be sufficient. I think it is useful because the Woods definition of a trust and confidence breach is far from precise and is apt to lead to inconsistent application. If this means that a gloss is being placed on the test, this is no great disaster. Constructive dismissal is a common law principle rather than a statutory one and, moreover, the ordinary English meaning of the word ‘trust’ clearly evokes concepts such as fairness and reasonableness. If I say that a friend has not acted unreasonably but I no longer trust him, he is likely to find this hard to accept.

For me, the biggest question about the trust and confidence test is where reasonableness comes in, if not in establishing a breach, and this is where cases like Buckland run into trouble. Buckland cites the 1985 case of Delabole Slate v Berriman, in which it is confirmed that a constructive dismissal can be fair. This is fine but trust and confidence was not breached in that case. In another case from the same year, Cawley v South Wales Electricity Board, it was held to be perverse to find that a disproportionate disciplinary sanction breached trust and confidence and yet gave rise to a fair dismissal, and it is hard to see how it could be otherwise. It was also said that considerations of fairness and the considerations affecting constructive dismissal are two sides of the same coin. Given the importance of fairness and reasonableness to unfair dismissal law, they must be key in deciding whether a breach is established.