Employment Gem Of The Week - 5/3/10

To keep you up to date with the ever changing world of employment law, Rooks Rider brings you its gem of the week......

In restoring the Employment Tribunal's (ET) original finding for the Claimant of constructive dismissal in the case of Buckland v Bournemouth University, the Court of Appeal has addressed a previously unresolved question of employment law.

In this case, the Claimant was a professor of archaeology at the Defendant University and one of his annual tasks was to mark the examination papers. There was some concern at the level of failures awarded by the Claimant, and the papers were re-marked on several occasions without recourse to the Claimant. The Claimant complained and an inquiry was set up and a report published which vindicated the Claimant and criticized the procedures of the board of examiners. The Claimant however did not accept that the findings of the report were sufficient to right the wrong that he had suffered and resigned, claiming constructive dismissal. The ET found that he had been constructively dismissed as the fact that his papers had been re-marked on several occasions without his knowledge amounted to a fundamental breach of his contract of employment, and that the findings of the inquiry did not 'cure' the breach.

The University appealed and the Employment Appeal Tribunal (EAT) found that the University had 'cured' its breach by producing the report prior to the Claimant deciding to treat the breach as a dismissal. However, the Court of Appeal disagreed.

In his judgment, Lord Justice Sedley queried whether the law should ignore the 'olive branch' extended by employers when attempting to cure such a breach, but ultimately held that "a completed breach, even if it can be compensated for, cannot be undone".

This means that even an employer's genuine attempts to resolve a dispute internally with an employee might still not be sufficient to enable them to avoid liability in a subsequent constructive dismissal claim.

If you have any questions in relation to this matter or any other employment issues that you might have please contact:

Amanda Pullinger
Head of Employment
+44 (0)207 689 7180

Philippa Robbins
Assistant Solicitor
+44 (0)207 689 7194
employmentgroup@rooksrider.co.uk