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Fundamental breach of contract cannot be cured after the event

Fundamental breach of contract cannot be cured after the event

In Buckland v Bournemouth University, the Court of Appeal ruled that the range of reasonable responses test plays no part in establishing whether there has been a fundamental breach of contract, in constructive dismissal claims and that once a fundamental breach has occurred the employer is not able to cure it.

Professor Buckland became involved in an argument with the University, concerning unauthorised re-marking of exam scripts, resulting in alterations to the scores he had originally given, and criticism of his original marking. The Professor resigned and claimed constructive dismissal, albeit that an inquiry held before his resignation exonerated him. A tribunal upheld the Professor’s constructive dismissal claim finding there had been a breach of the implied term of trust and confidence. The EAT rejected the University’s argument that a fundamental breach of contract could only occur where the employer’s actions fall outside the range of reasonable responses. The EAT ruled that unreasonable conduct alone is insufficient – there must be a breach of contract.  However, the EAT held that the subsequent inquiry did remedy the breach, and so by the time of Professor Buckland’s resignation there was no constructive dismissal.

The Court of Appeal endorsed the EAT’s reasoning on the “range of reasonable responses test”. Unreasonable conduct alone is not sufficient to establish constructive dismissal –  there must be a fundamental breach of contract. However, the Court rejected the EAT’s finding that a repudiatory breach of contract can be cured after the event. Allowing such a right would take away the innocent party’s option to accept the breach and resign in response, for which there was simply no justification in law. Therefore, Professor Buckland had been constructively dismissed.

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