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Repudiatory breaches by an employer cannot be remedied

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In the recent case of Buckland v Bournemouth University Higher Education Corporation the Court of Appeal held that where an employer has committed a repudiatory breach of an employee’s contract of employment it is not possible for the breach to be “cured”.

The Claimant was a university professor. Due to an unusually low pass rate among the Claimant’s students his head of department authorised a re-marking exercise without the Claimant’s consent. The Claimant complained about the Head of Department’s behaviour and a report was prepared which found in the Claimant’s favour.

However, despite the favourable report, the Claimant resigned in response to his Head of Department’s actions and brought a claim for constructive unfair dismissal.

The Court of Appeal confirmed that the report did not cure the University’s initial breach and the Claimant was still entitled to resign in response to it. The Court also confirmed that in constructive unfair dismissal claims the breach should be assessed objectively and not with reference to the band of reasonable responses which is used in unfair dismissal cases.

This decision makes it clear that it is important for employers to do things right first time when managing employees rather than expecting to be able to remedy any problems through a subsequent grievance process.

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