Bournemouth University Higher Education Corporation v Buckland
| Jurisdiction | England & Wales |
| Judgment Date | 24 February 2010 |
| Neutral Citation | [2010] EWCA Civ 121 |
| Docket Number | Case No: A2/2009/1106 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 February 2010 |
[2010] EWCA Civ 121
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Before: Lord Justice Sedley
Lord Justice Carnwath
and
Lord Justice Jacob
Case No: A2/2009/1106
UKEAT/0492/08
Mr Antony White QC and Mr Tom Brown (instructed by UCU Legal Services) for the Appellant
Mr Jason Galbraith-Marten and Mr Edmund Williams (instructed by Messrs Martineau) for the Respondent
Hearing date: Monday, 8 February 2010
Lord Justice Sedley:
The issues
This case, as Sir Richard Buxton noted when giving permission to appeal, raises at least two important and (surprisingly) unresolved questions of employment law:
(i) Whether the conduct of an employer who is said to have committed a fundamental breach of the contract of employment is to be judged by a unitary test or a “range of reasonable responses” test.
(ii) Whether an employer who has committed a fundamental breach of contract can cure the breach while the employee is considering whether to treat it as a dismissal.
The history
The way in which these issues have arisen is described in the decision of an employment tribunal sitting at Southampton in June 2008, to the lucidity and organisation of which I would wish to pay tribute. Taking the facts (which are also summarised in the Employment Appeal Tribunal's decision of 8 May 2009, §2–20) very shortly, the key ones are these.
The claimant, Professor Buckland, held a chair of environmental archaeology at the defendant university. One of his annual tasks was to mark students’ examination papers, which would be routinely second-marked to ensure consistency. The 2006 examinations included 16 resits, of which the claimant failed 14. The second marker, Mr Haslam, endorsed the marks. At a meeting attended by the claimant, the board of examiners, chaired by Dr Astin, checked and confirmed the results. Note was taken of the high failure rate and of the need to address its causes.
However, the programme leader on the archaeology course, Dr Russell, very shortly afterwards took it on himself to re-mark the papers. The tribunal accepted that this was done because of legitimate concern about the throroughness and evidencing of the second markings, but they found that it was done without the authority of Dr Astin. Dr Astin, however, was concerned about possible appeals and so had the scripts re-marked by another staff member, Mr Hewitt. The marks Mr Hewitt awarded were not far away from those awarded by the claimant, but they elevated some students from a straight fail to a marginal zone in which their marks in other subjects might rescue them.
Because, however, of the claimant's continuing protests at what had happened, the University in mid-October set up an inquiry chaired by Professor Vinney. The claimant, who considered that Professor Vinney was not of sufficiently independent status, gave written evidence to the inquiry but declined to appear before it, a decision which the tribunal considered extremely unfortunate. It had been made clear to him that the inquiry was not going to question the teaching of the course: it was concerned only with the unauthorised re-marking of the resit papers. But the tribunal judged that “unless everything happened on the claimant's terms then he would not cooperate”.
The report, published in January 2007, vindicated the claimant. It criticised the board of examiners for not being more concerned about the failure rate, but was clear that the claimant's marks, once accepted by the board, should have been final. It went on to criticise both the lack of a sufficient benchmark of suitability for second markers and the way in which a third marking had been undertaken. And it made constructive proposals for improving rules and practice.
The claimant was far from satisfied with the report. He was angry that Dr Astin in his evidence had impugned his integrity as an examiner. But he went on to contend – without, the tribunal found, a shred of justification – that Professor Vinney had supported both Dr Russell's and Dr Astin's assaults on his integrity as an examiner, and that the inquiry had set out simply to exonerate management.
Professor Darville, the head of department, sought to mollify the claimant, agreeing that the university ought never to have got itself into this position over re-marking, undertaking to ensure that it could not happen again and urging the claimant to meet Mr Hewitt as Vinney had recommended. He ended by expressing his gratitude to the claimant for his stand and assuring him that he had “won the war that will end all wars” on the subject, even if he had lost some battles on the way.
The claimant was not mollified. He considered that “Astin and his management cronies” had got away with it. By letter of 22 February 2007 he resigned with effect from the end of July, when his obligations to his students would have been fulfilled.
The proceedings
Professor Buckland brought proceedings for unfair constructive dismissal.
The employment tribunal (EJ Twiss, Mr J Shah, Mr D S Robinson) held, first, that the delay between letter of resignation and its effective date was not such, in the circumstances, as to amount to an affirmation of the contract of employment. This is not now contested, but it of leaves open the question whether (a) there had been, and (b) still was, a repudiatory breach.
As to the first of these questions, the tribunal concluded that the University had indeed done something calculated to destroy the relationship of trust and confidence which is implicit in all contracts of employment: through Dr Astin, who was the chairman of the board of examiners, and without consulting the claimant or the second marker, it had procured and accepted the re-marking of the resit papers – an unequivocal affront to his integrity as to which his “sense of grievance … was fully justified”. It went, they found, “beyond what could be regarded as one of those incidents of professional life that a person must accept and move on”. There had been no need, they found, to take this course in order to ensure that students were fairly dealt with. The claimant's belief that it was part of a much larger process of academic dumbing-down might well have a bearing on his prospective loss (it might have led him to resign in the not too distant future in any event), but it did not mitigate the insult.
Having made these careful findings, the tribunal asked themselves a question which neither party had asked: had the Vinney inquiry cured the breach? They decided that it had not. They did not accept that it lacked status or independence, but they accepted that its report did not afford the “the kind of exoneration and reinstatement that the claimant was, in the circumstances, entitled to”. They concluded:
“…. While it is understandable that the report was not more explicitly critical of those people (and it has to be said that it was quite critical of them) he was, we consider entitled to more explicit vindication and exoneration. The University had been guilty of a fundamental breach of contract and in our view it needed something very clear to rectify that breach if indeed it were possible to do that.”
The tribunal accordingly found that the claimant had been dismissed. They did not go on, however, to decide whether the dismissal, albeit constructive, had been unfair.
A further ground of unfair dismissal based on the making of protected disclosures in the course of the dispute failed because the disclosures, while they had occurred, had played no part in the termination. This ground has not been renewed.
The EAT (HH Judge Peter Clark, Mrs A Gallico, Mr B R Gibbs) allowed the University's appeal. Taking the opportunity to untangle a thicket of authority on the correct legal test, they upheld the finding that the University had been in fundamental breach of the claimant's contract of employment. But they overset the tribunal's finding that the Vinney report had not cured the breach. They expressed themselves satisfied that, regarded objectively, it had done so. This alone would have been a simple disagreement, insufficient for a successful appeal; but they also held that the tribunal had erred in principle by adopting a subjective test, allowing the EAT to substitute its own view.
Having thus held that there had been no constructive dismissal because the University's repudiatory breach had been cured before Professor Buckland purported to accept it, the EAT dealt briefly with two remaining issues, delay and fairness, which had consequently become moot. As to delay, they found no reason to differ from the tribunal (albeit they focused on the delay between the initial events and the Vinney report, whereas the tribunal had focused on the long period of notice which the claimant eventually gave). As to fairness, had they upheld the tribunal on dismissal they would have sent the claim back on the question whether the University had some substantial reason for their conduct which rendered the dismissal fair, since the tribunal appeared to have overlooked this.
This appeal and cross-appeal
In their logical order, the issues now raised, or contingently raised, are these:
(a) Is the occurrence of a fundamental breach of a contract of employment, at least on the employer's part, to be gauged by a conventional contract test or by a ‘range of reasonable responses’ test? The University raises this issue by way of cross-appeal. If it succeeds in principle, the...
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