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Constructive Dismissal

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Two interesting cases were handed down last week on constructive dismissal.

The first case, summarised by Tom Brown, Jason Galbraith-Martin and Ed Williams of Cloisters (all of whom appeared in the case), is Bournemouth University Higher Education Corporation v. Buckland. This is authority for the proposition that the ‘range of reasonable responses’ test should not be used when considering whether an employee has been constructively dismissed: such an approach (seen in Fairbrother and Claridge) either adds nothing to settled Court of Appeal and House of Lords authority or is inconsistent with it.

The EAT provides guidance on the proper approach to considering whether there has been a constructive dismissal and on whether an employer can cure a breach of the implied term of trust and confidence. On the facts, Professor Buckland resigned after his marks were overturned without his knowledge. The ET held that overturning his marks amounted to a breach of the implied term of trust and confidence and the University had not cured the breach through the grievance process. On appeal by the University, the EAT rejected the argument that a range of reasonable responses approach should be used when deciding if an employee has been dismissed but held that the ET had been wrong to find that the grievance process hadn’t cured any breach of the implied term.

The second case, summarised by Richard Woods of LawAtWork, is Wishaw and District Housing Association Limited -v- Moncrieff . This is authority for the proposition that a tribunal must clearly identify what the final straw is when determining whether a Claimant is entitled to resign or not. Further, it provides a useful summary in identifying what types of conduct by a Respondent are capable (or not) of constituting a 'final straw' for the purpose of breaching trust and confidence. In this case the EAT held that (1) a letter from the Respondent threatening to consider the possible dismissal of the Claimant because of his long term absence and (2) a letter from the Respondent's representative offering to deal with his grievance internally when he had previously been offered external mediation, could not objectively be considered as a last straw entitling the Claimant to resign.