Can an employer cure a constructive dismissal?

It is well-established that an implied term in any contract of employment is that the employer will not, “without reasonable or proper cause, conduct [itself] in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee” (see Woods v WM Car Services (Peterborough) Ltd [1983] IRLR 413). In the event that this term is breached, an employee can justifiably regard themselves as having been dismissed

A question that clients often ask employment lawyers is whether an employer which mistreats an employee in this way, and thereby breaches the contract of employment, may subsequently seek to “cure” the breach by apologising to the employee and extending an “olive branch”? The answer lies in the judgment of the Court of Appeal in Buckland v Bournemouth University [2010] EWCA Civ 121.

The Claimant, Professor Buckland, was an academic who was employed by the University of Bournemouth. One of the Claimant’s duties was to mark student examinations. Examinations were marked by a second marker, in accordance with ordinary practice at universities. The Claimant failed the majority of his students. His marking was subsequently supported by the second marker. However, a course leader – i.e., someone other than the second marker – re-marked the exams again. The latter resulted in similar findings, with the exception of a few students whose marks were elevated to marginal zones that enabled them to pass. The Claimant complained to the University and an investigation was commissioned. The investigation report vindicated the Claimant and noted that the initial grades should have been final. The University then assured the Claimant that he had been vindicated and that it would not, in the future, permit such second re-marking. Despite the University offering this “olive branch”, the Claimant resigned from his job because he thought that his integrity had been denigrated.

The Claimant then brought a claim for constructive unfair dismissal in the Employment Tribunal. The case later reached the Court of Appeal. An issue before the latter was whether it was possible for an employer to unilaterally “cure” a fundamental breach of contract by offering to make amends.

The Court of Appeal held that an employer was entitled to attempt to “cure” the breach, however, the employee was not obliged to accept the “olive branch” and was instead entitled to treat the breach as repudiatory, i.e., a fundamental breach of contract. The Court noted, however, that an employee had to make their position clear and resign within a reasonable length of time; an employee who failed to do this risked being regarded as having affirmed the employer’s breach, i.e., as having treated it as non-repudiatory. In Professor Buckland’s case, it was deemed reasonable for him to have waited for the outcome of the investigation and to have left following the close of the academic year, which he had done to avoid adversely impacting his students.

The answer to the question posed by the title is therefore: “technically no”. However, an employee in such a position must make their position clear as soon as possible and thereafter resign, otherwise they will be held to have accepted the “olive branch”.

Demstone Chambers are London and Milton Keynes based employment barristers. We specialise particularly in Unfair Dismissal, Discrimination, and compliance matters such as immigration issues, civil penalties, and sponsored working.


Demstone can help your case

Get in touch with us...