BOURNEMOUTH UNIVERSITY HIGHER EDUCATION CORPORATION v PROFESSOR P BUCKLAND [2009] UKEAT 0492_08_0805

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0492_08_0805Case No Appeal No. UKEAT/0492/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BOURNEMOUTH UNIVERSITY HIGHER EDUCATION CORPORATIONAPPELLANTPROFESSOR P BUCKLANDRESPONDENT
Before
His Honour Judge Peter Clark Mrs A Gallico Mr B R GibbsDate 8 May 2009
[1]APPEARANCES For the Appellant MR JASON GALBRAITH-MARTEN (of Counsel) MR ED WILLIAMS (of Counsel) Instructed by: Messrs Martineau Solicitors No 1 Colmore Square Birmingham West Midlands B4 6AA For the Respondent MR TOM BROWN (of Counsel) Instructed by: University & College Union Solicitors 27 Britannia Street London WC1X 9JP SUMMARY UNFAIR DISMISSAL: Constructive dismissal Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant's resignation did not amount to constructive dismissal. Whether the range of reasonable responses test has any place in the question as to whether an employee has been constructively dismissed. Fairbrother and Claridge considered and not followed. General observations on approach to constructive unfair dismissal. HIS HONOUR JUDGE PETER CLARK The parties to these proceedings before the Southampton Employment Tribunal were Professor Paul Buckland, Claimant and Bournemouth University, Respondent. We shall so describe them. This is an appeal by the Respondent against the Judgment of an Employment Tribunal chaired by Employment Judge Twiss upholding the Claimant's complaint of ordinary unfair dismissal contrary to s.98 of the Employment Rights Act 1996 (ERA). Their finding that the Claimant was not automatically unfairly dismissed under s.103A is not challenged by way of cross-appeal. The Employment Tribunal hearing took place on 9-12 June 2008. Following a meeting in private the Employment Tribunal's reserved Judgment with reasons was promulgated on 14 August 2008. Background[2]The Claimant, described by the Employment Tribunal as an academic of distinction, was employed by the Respondent as a Professor of Environmental Archaeology from August 2003 until his resignation, tendered on 22 February 2007, which took effect on 31 July 2007. His work at the University involved both teaching and research.[3]The events leading to the Claimant's resignation, amounting so the Employment Tribunal found, to a constructive dismissal within the meaning of s.95(1)(c) ERA began with the marking of student examination papers in the summer of 2006. The Claimant was the unit leader for a course known as 'Reconstruction of Environment and Economy' and as such was responsible for marking the end of year examination papers by students on that course. 18 out of 50-60 students failed. 16 failed candidates re-sat the papers on 29 August. The re-sit papers were marked by the Claimant as first marker and Mr Haslam as second marker. 14 of the 16 candidates failed their re-sits. The Claimant thought many of the papers were of poor quality.[4]On 7 September a meeting of the Board of Examiners, chaired by Dr Astin, took place. The Claimant attended that meeting. The re-sit marks were checked and confirmed. As the Employment Tribunal found, the Board confirmed the marks, the number of failures and noted the high number of failures.[5]At this point, as the Employment Tribunal put it, Dr Russell, Programme Leader for the University of Archaeology BSc course, intermeddled in the exam marking process. Genuinely concerned about the high number of failures on the Claimant's course, a concern shared by Dr Astin, he took possession of the re-sit papers and re-marked them. Having done so he set out various criticisms of the original marking by the Claimant and Mr Haslam in a note dated 8 September.[6]When Dr Russell's unauthorized intervention was reported to him by Mr Cox, Secretary to the Board of Examiners, Dr Astin then arranged for the scripts to be re-marked by another member of the academic staff, Mr Hewitt.[7]Mr Cox notified the Claimant of Mr Hewitt's involvement in a re-marking exercise by e-mail on 14 September. He asked the Claimant whether that was alright with him, to which the Claimant replied by e-mail the same day: "do what is necessary".[8]On 19 September the Claimant expressed a different view. He e-mailed Professor Darville, Head of School, taking great exception to the arbitrary re-marking of papers by somebody who did not have relevant expert knowledge. He complained that if the decision of the Board of Examiners could be overturned by "the whim of an individual" because he happened to like the students concerned it made a complete mockery of the examination process. He suggested that the correct procedure would have been to refer the dispute to external examiners. The Employment Tribunal found that this e-mail from the Claimant was his first qualifying disclosure (see ERA, s.43B).[9]The upshot of Mr Hewitt's marking exercise was to generally increase the original results by between 2 per cent and 6 per cent overall. It meant that some students moved from a clear fail to a potential pass depending on their results in other subjects.[10]The results of Mr Hewitt's marking were relayed to Dr Astin who, without referring back to the Claimant, approved the marks awarded by Mr Hewitt and those results were communicated to the affected candidates. In evidence Dr Astin accepted, with hindsight, that he first ought to have consulted with Mr Hunt, Head of Academic Development & Quality, and spoken directly with Mr Hewitt and the Claimant.[11]On 13 October the Claimant sent a second qualifying disclosure, this time to Professor Rosemary Pope, Pro Vice Chancellor Education. He complained about what he described as the arbitrary overruling of the decisions of examiners and the Board of Examiners by the Head of Department, Dr Astin; interference in the marking process by another lecturer which was then supported by the Head of Department and questioning the value of the degrees awarded to other students. He said that he intended to publicise a report on the course and his responses on the Internet. The Employment Tribunal describe this as an 'intemperate response' from the Claimant.[12]The matter was raised at a meeting of the University's executive group, chaired by the Vice-Chancellor, on 20 October. It was decided to set up an enquiry under the University's Public Interest Disclosure policy chaired by Professor Hunt and Mrs Baron, Assistant Registrar for Student Policy & Support. The Claimant objected to Professor Hunt and he was replaced by Professor Vinney, described by the Employment Tribunal as a very senior academic held generally in high esteem.[13]The Claimant remained unhappy. He pointed out that Professor Vinney was on the same level as Dr Astin in the University hierarchy. He believed that a retired High Court Judge ought to have been appointed. The Employment Tribunal disagreed. They found it entirely appropriate to appoint Professor Vinney.[14]The Employment Tribunal found (para 75) that the enquiry was conducted conscientiously by Professor Vinney and Mrs Baron. They interviewed seven people including Dr Astin, Mr Hewitt, Dr Russell and Mr Haslam. The Claimant was genuinely offered the opportunity to appear and give evidence but he declined to do so. His reason was his mistrust of the actions taken by management; he preferred to present his evidence in writing. The Employment Tribunal regarded his decision not to take part as extremely unfortunate. With his co-operation difficulties might have been resolved.[15]The Vinney enquiry report was published in January 2007. At paragraph 78 of their original reasons the Employment Tribunal then say:
"…The Claimant was overwhelmingly. The 'Observations' which are part of the report are of particular significance."
[16]Following receipt of the Reserved Judgment promulgated on 14 August solicitors for the Respondent wrote to the Employment Tribunal on 22 August 2008. They said this:
"…The second sentence of paragraph 78 of the Judgment reads as follows: "
The Claimant was overwhelmingly ". Clearly the sentence is incomplete. We should be grateful therefore if Employment Judge Twiss would issue a correction to this paragraph pursuant to rule 37 of the Rules of Procedure."[17]A Certificate of Correction was issued by Employment Judge Twiss dated 3 September 2008. Instead of completing the relevant sentence "The Claimant was overwhelmingly" he deleted those words from paragraph 78.[18]In summarising the Vinney report apart from leaving in the air just what the Claimant was 'overwhelmingly' - Mr Galbraith-Marten submitted that the missing word is probably 'vindicated' or perhaps 'exonerated' - the Employment Tribunal point out that there is clear criticism of Dr Astin's conduct in approving the third marking (by Mr Hewitt) without directly consulting the Claimant.[19]The Claimant expressed a number of comments on the Vinney report. He attacked the integrity of Professor Vinney and Mrs Baron, an attack the Employment Tribunal found to be entirely unjustified. The Claimant said that he was not prepared to let Dr Astin and his management cronies get away with it. He was applying for other jobs and was simply not prepared to work for Astin any more.[20]The Claimant resigned by letter dated 22 February 2007. He criticised Professor Vinney's conclusion that a Head of School had a right to arbitrarily overrule the correct marking process. He said that he was forced to resign as soon as his commitments to students' work were completed, probably by the end of July. In fact, his employment terminated on 31 July 2007. The Issues[21]At paragraph 5 of their Reasons the Employment Tribunal identified the following issues for determination: "Did the Claimant make a protected disclosure or disclosures? Was the Claimant "dismissed" within the meaning of s.95(1)(c) of the 1996 Act? If the Claimant was dismissed, was the principal reason for the dismissal the making of a protected disclosure, so as to be an automatically unfair dismissal? If not, was the Claimant's dismissal otherwise unfair? The Employment Tribunal's conclusions[22]In relation to the issues identified above the Employment Tribunal reached the following conclusions:(1) Yes. The first qualifying disclosure was an e-mail from the Claimant to Mr Darville dated 19 September 2006 (paras 41-42). A second was contained in an e-mail from the Claimant to Professor Rosemary Pope, Pro Vice Chancellor Education dated 13 October 2006 (para 52).(2) Yes. The actions of Dr Astin on or about 20 September 2006 in confirming marks given by Mr Hewitt to students originally marked by the Claimant without consulting the Claimant amounted to a fundamental breach of his contract of employment; it was an act calculated to destroy the relationship of trust and confidence between the Claimant and the University (paras 104-5). There was a subsequent breach of contract (para 112). The Vinney report did not cure the original breach (para 111). The Claimant did not affirm the contract by delaying his resignation (paras 91-95). He was constructively dismissed.(3) No. There was no causal connection between the protected disclosures and the Respondent's breaches of contract which caused the Claimant to resign (paras 113-114). He was not automatically unfairly dismissed contrary to s.103A ERA.(4) Yes. The Judgment of the Employment Tribunal was that the Claimant was unfairly dismissed pursuant to s.98 ERA. Its reasons for moving from a finding of constructive dismissal to one of unfair dismissal are not stated. The Appeal[23]In advancing the Respondent's appeal Mr Galbraith-Marten raises four separate challenges to the Employment Tribunal's approach. They may be summarized as follows:(1) The Employment Tribunal was wrong to find that the Respondent, through Dr Astin, was in fundamental breach of the implied term of trust and confidence on about 20 September 2006. (Fundamental Breach)(2) The Employment Tribunal was wrong to find that any such breach was not remedied by the Vinney report (Curing the breach).(3) The Employment Tribunal ought to have found that in delaying before resigning the Claimant had waived the breach and thereby affirmed the contract (Affirmation).(4) The Employment Tribunal failed to deal with the Respondent's alternative case that if the Claimant was constructively dismissed that dismissal was for a potentially fair reason, some other substantial reason, and was fair under s.98(4) ERA. We shall deal with each of those submissions in turn. Fundamental Breach[24]Mr Galbraith-Marten's submissions on this aspect of the appeal raise directly for decision by us whether, in determining whether the employer was in fundamental breach, here of the implied term of trust and confidence, the Employment Tribunal ought to have applied the band of reasonable responses test. It is submitted that the employee can only show such fundamental breach where the actions of the employer fall outside the band of reasonable responses open to him. That submission is expressly based on the observations of Elias P in Claridge v Daler Rowney [2008] ICR 1267 , 1274 F-G.[25]In Claridge Elias P considered the earlier decisions of this tribunal in Abbey National plc v Fairbrother [2007] IRLR 320 (Lady Smith presiding) and Hamilton v Tanberg Television Ltd (unreported 12 December 2002 HHJ McMullen QC presiding). We detect a difference in approach in each of those cases as to when the 'range' test ought to be applied in determining the issue of constructive dismissal, but the point raised in this appeal is more fundamental. Mr Brown's primary submission is that the test has no application at the s.95(1)(c) (constructive dismissal) stage. We agree. Since we are departing from three earlier decisions of the Employment Appeal Tribunal we should fully explain our reasoning. The range test[26]The statutory route map in cases of 'ordinary' unfair dismissal (we exclude automatically unfair dismissal, such as that under s.103A, raised unsuccessfully in the present case) involves three stages:(1) Has the employee shown that he has been dismissed by his employer? He may do so in one of only three ways (s.95(1)ERA); (a) actual dismissal by the employer (b) expiry of a limited-term (formerly fixed-term) contract or (c) constructive dismissal, that is termination of the contract of employment by the employee in circumstances where he is entitled to do so by reason of his employer's (repudiatory) conduct.(2) If, but only if, dismissal is shown by the employee, in any of those three ways, it is then for the employer to show a potentially fair reason for dismissal (s.98(1) and (2) ERA).(3) If a potentially fair reason is shown by the employer it is then for the Employment Tribunal to determine, the burden of proof being neutral, whether dismissal for that reason was fair or unfair (S.98(4)). Did the employer act reasonably or unreasonably in treating that reason as a sufficient reason for dismissal?[27]The range test was formulated to deal with the third stage question of reasonableness under s.98(4). It first emerged in the Court of Appeal in the judgment of Lord Denning MR in British Leyland (UK) Ltd v Swift [1981] IRLR 91. An attempt by Morison P, sitting in this tribunal in Haddon v Van den Bergh Foods Ltd [1999] ICR 1150 , to depart from the range test was overruled by the Court of Appeal in Foley v Post Office and HSBC v Madden [2000] ICR 1283 . An attempt to carry the challenge to the range test to the House of Lords failed at the petition stage in Beedell v West Ferry Printers Ltd [2001] ICR 962 , 965D. It is therefore beyond question that in determining the question of reasonableness under s.98(4) the range test falls to be applied.[28]Returning to the question of constructive dismissal under s.95(1)(c) ERA, it is now almost forgotten, 30 years on, that there was then a real debate as to what was the nature of the employer's conduct which entitled the employee to leave and claim that he had been constructively dismissed. In short, was it unreasonable conduct by the employer or, strictly, breach of contract by the employer? In Gilbert v 1.Goldstone Ltd [1976] IRLR 257 the EAT (Kilner-Brown J presiding) took the view that unreasonable conduct was sufficient regardless of whether it involved a breach of contract by the employer. The Court of Appeal initially upheld that view in Turner v London Transport Executive [1977] ICR 952; however, in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 a different division of the Court, presided over by Lord Denning MR, asserted the 'contract' test. Thus the question of reasonableness falls to be considered in its appropriate place in the statutory scheme, under s.98(4) ERA. We note that in Claridge Elias P observed (para 39 1274G) correctly, by reference to Sharp , that it is well-established that unreasonable conduct alone is not enough to amount to a constructive dismissal.[29]Applying the contract test to a claim of constructive dismissal based on a breach of the implied term of trust and confidence requires the employee to show that the employer has, without reasonable and proper cause conducted himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between them. See Mahmud v BCCI [1997] ICR 606 (H.L.), as I sought to show by reference to the earlier cases in Baldwin v Brighton & Hove City Council [2007] ICR 680 .[30]Given that formulation of the question by the House of Lords where does that leave the line of Employment Appeal Tribunal authority culminating in Claridge , which imports from the s.98(4) question the 'range' test? Either, in our respectful opinion, it adds nothing, in which case it is superfluous; or it alters the House of Lords test, in which case it is impermissible.[31]In Claridge (para 32) Elias P identified a possible difficulty, identified in Fairbrother , that of different results in unfair dismissal claims depending on whether the dismissal was actual or constructive. It was that perceived difficulty which caused the President to introduce the range test at the third stage of the constructive dismissal question, as formulated by Lady Smith at paragraph 30 of Fairbrother (reproduced in Claridge at para 33).[32]It seems to us, with respect, that the difficulty envisaged by the President is illusory provided that the correct statutory approach, endorsed by higher authority is followed.[33]It is well-established that a constructive dismissal may be a fair dismissal, just as an actual dismissal may be fair. In Genower v Ealing, Hammersmith & Hounslow A.H.A [1980] IRLR 297 (Slynn P presiding) the Employment Appeal Tribunal upheld an industrial tribunal's finding that by unilaterally varying the employee's job description the employer was in fundamental breach of contract entitling the employee to resign in accordance with the Sharp contract test. However, in dismissing the employee's appeal the Employment Appeal Tribunal also upheld the industrial tribunal's further findings that the employer had shown(a) some other substantial reason for dismissal and(b) that (constructive) dismissal for that reason was fair in accordance with what is now s.98(4) ERA (the onus then being on the employer under s.57(3) EPCA 1978, prior to its amendment by the Employment Act 1980 , the dismissal having taken effect on 17 April 1979).[34]The Court of Appeal was required to consider the relationship between constructive dismissal and fairness in Savoia v Chiltern Herb Farms Ltd [1982] IRLR 166. In that case it was boldly submitted by Mr John Hendy on behalf of the employee that a constructive dismissal cannot be fair. As Waller LJ tersely commented (para 5):
"He has cited to us a number of authorities, nearly all of which are against him but which he says are wrong."
That submission failed, the Court accepting that the employee's constructive dismissal was fair.[35]In Berriman v Delabole Slate Ltd [1985] ICR 546 (CA), a case to which this Employment Tribunal referred in setting out its self-direction as to the law (Reasons, para 12), Browne-Wilkinson LJ recognized the potential difficulty of fitting together the concept of fairness and a constructive dismissal. However, his guidance was characteristically clear. He said (550H – 551A):
"In our judgment, the only way in which the statutory requirements of the [ERA] can be made to fit a case of constructive dismissal is to read [s.98(1)ERA] as requiring the employer to show the reasons for their conduct which entitled the employee to terminate the contract thereby giving rise to a deemed dismissal by the employer. We can see nothing in the decision in Savoia … which conflicts with this view …"
[36]It is perhaps unfortunate that none of this line of authority was considered in the judgments in either Fairbrother or Claridge .[37]One case which was cited to the EAT in Fairbrother was the Court of Appeal decision in Transco plc v O'Brien [2002] IRLR 444 . It is referred to at paragraph 22, where Lady Smith helpfully summarizes the submissions of counsel for the employer, who is recorded as having indicated that he was aware of the caveat sounded in Transco regarding the dangers of using terminology which may appear to extend or detract from the duty of trust and confidence as set out in Mahmud v BCCI , but submitted that would not be the effect of upholding his submission (that the range test should be applied to the constructive dismissal question).[38]Whilst reflecting on the way in which the case was put before the Employment Appeal Tribunal in Fairbrother we also note that in his submissions the representative of the employee submitted (para 25) that in considering whether the employer was in breach of the implied term of trust and confidence, having earlier espoused the Mahmud test, as previously formulated by Browne-Wilkinson P in Woods v WM Car Services (Peterborough) Ltd (1981) IRLR 347:
"The task involved, essentially, the same process as deciding whether a dismissal was fair or unfair."
[39]Fuller research would, based on authority to which we have referred, have demonstrated that proposition to be wholly incorrect. The question of dismissal, whether actual or constructive, is quite distinct from the separate questions of reason for dismissal and its fairness as a matter of statutory construction. However, that submission may explain why, in our view, the Employment Appeal Tribunal took a wrong turn in Fairbrother .[40]Transco was not further considered in Fairbrother and is not referred to in the President's judgment in Claridge . In Transco the employee explained that he was entitled to enhanced severance terms on the basis that he was a permanent employee. The Employment Tribunal upheld his complaint and the Employment Appeal Tribunal (Mr Recorder Langstaff QC presiding) dismissed the employer's appeal, as did the Court of Appeal. The Employment Tribunal had found that the employer was in breach of the implied term of trust and confidence in not treating the employee in a 'fair and even handed manner'. At paragraph 24 Pill LJ said this:
"I do not find it necessary or appropriate to consider the effect of the use of that expression which, in my judgment, and for the reasons I have given does not affect the outcome of this appeal. Plainly there are dangers in using terminology which may extend, or may appear to extend, the scope of the implied term of trust and confidence, as explained in the Mahmud case [1977] ICR 606 and the cases cited there. Employment tribunals should apply the tests stated in those cases and not use language which may detract from the correct test or suggest that a different test has been applied …."
[41]We echo those words in the light of the Claridge line of authority in this tribunal. If application of the range test has the effect of narrowing, or appearing to narrow, the Mahmud test, that is as impermissible as extending it.[42]Against that background we return to the Claridge line of cases. One immediate problem for employment tribunals, in the face of those cases, is knowing at what point the range test is to be applied in the constructive dismissal question. Lady Smith read the Mahmud test as raising three questions (para 30):(1) What was the conduct complained of?(2) Did the employer have reasonable and proper cause for that conduct?(3) If not, was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence? At paragraph 36 she said:
"… in a constructive dismissal case involving a grievance procedure, when asking the second question we have posed above it seems to us that it is not only appropriate but necessary to ask whether the employer's conduct of the grievance procedure was within the band or range of reasonable responses to the grievance presented by the employee … Only if it has been conducted in a manner which no reasonable employer would have conducted it can it be said that he did not have reasonable and proper cause for his conduct."
[43]We should correct an error which appears to have crept into the ICR report of Claridge . In the list of cases referred to in the President's judgment (1267C) Fairbrother is referred to as an EAT (Scottish) case. It was not a Scottish EAT decision. Lady Smith was sitting with members in London, hearing an appeal against a judgment of the Manchester Employment Tribunal. We say that because we are aware that Fairbrother was in the lists for substantive hearing by the Court of Appeal, but the appeal appears to have been settled; it was never determined by the Court of Appeal.[44]In GAB Robins (UK) Ltd v Triggs [2007] ICR 1424 I distinguished the approach in Fairbrother in a case involving a final straw constructive dismissal, a distinction endorsed by the President in Claridge (para 57). Triggs was successfully appealed to the Court of Appeal on a separate point relating to compensation [2008] IRLR 317 but not on the question of constructive dismissal.[45]In Claridge the President expressed reservations as to the judicial basis of the application of the range test to the second stage of the Mahmud test as formulated at paragraph 30 of Fairbrother ( Claridge para 36). Instead, he preferred to focus on the third limb of the test: was the conduct calculated (we would add, or likely) to destroy or seriously damage the relationship of trust and confidence; at paragraph 39 he said; "it seems to us that there is no artificiality in saying that an employee should not be able to satisfy that test unless the behaviour is outwith the band of reasonable responses."[46]This sequence demonstrates, we think, the dangers of overlaying settled, high authority with extraneous concepts taken from a separate breach of the law. The informed observer may query why the range test applies at stage 2 of the Mahmud formulation of the trust and confidence term, but not stage 3 ( Fairbrother ) or at stage 3, but not stage 2 ( Claridge )? Why does it apply in a case involving a grievance procedure ( Fairbrother ) but not a 'last straw' case ( Triggs , endorsed in Claridge )?[47]In summary, we commend a return to settled authority, based on the following propositions:(1) In determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Mahmud test should be applied.(2) If, applying the Sharp principles, acceptance of that breach entitled the employee to leave, he has been constructively dismissed.(3) It is open to the employer to show that such dismissal was for a potentially fair reason.(4) If he does so, it will then be for the Employment Tribunal to decide whether dismissal for that reason, both substantively and procedurally (see Sainsbury v Hitt [2003] IRLR 23 ), fell within the range of reasonable responses and was fair.[48]Turning then to the facts of the present case and applying that approach, was the Employment Tribunal entitled to find that the Respondent was in fundamental breach of contract on about 20 September 2006? We bear in mind that that question is essentially one of fact for the Employment Tribunal Pederson v London Borough of Camden [1981] ICR 674 (CA).[49]The short answer is that they were so entitled. Dr Astin's decision to accept Mr Hewitt's re-marking of the Claimant's students without consulting him was, in the particular context of this employment, capable of amounting to conduct calculated to or likely to undermine the necessary trust and confidence.[50]Mr Galbraith-Marten lists a number of findings by the Employment Tribunal which he contends justify the action taken by Dr Astin. His genuine concern about the number of student failures; the real risk that students would appeal their original markings; his concern about the lack of evidence of second marking by Mr Haslam and other findings. We have considered that submission. However, the Employment Tribunal considered and rejected the argument that the Respondent had reasonable and proper cause for Dr Astin's actions. As they said at paragraph 107, justice to the students could have been effected without the damage to trust and confidence which they found.[51]It follows that we reject the Respondent's first ground of appeal, applying straight Mahmud principles, as did the Employment Tribunal. Curing the breach[52]It is common ground between counsel that, just as the question whether the employer is in fundamental breach of contract requires objective consideration, so too does the question as to whether the breach was remedied before acceptance of breach by the wronged party.[53]It is clear from the judgment of Browne-Wilkinson P in WE Cox Toner (International) Ltd v Crook [1981] ICR 823 (EAT) that the ordinary contractual rule applies; the wronged party may give the other party an opportunity to remedy the breach. In doing so he does not waive the breach and thereby affirm the contract. Further, as Asquith LJ famously observed in Howard v Pickford Tool [1951] 1 K.B. 417, an unaccepted repudiation is a thing writ in water.[54]Significantly, the Employment Tribunal found (para 112) that no further breach of contract by the Respondent took place after 20 September 2006. It follows from that simple finding that the Vinney investigation and report did not of itself undermine trust and confidence.[55]Thus, it seems to us, the Claimant was entitled to await the outcome of the Vinney enquiry before deciding whether or not to accept the original breach and treat himself as discharged. That was the course which he took.[56]That leads us to the critical question in this appeal. Did the Employment Tribunal fall into error in finding that the Vinney report had failed to cure the breach (paras 110-111)?[57]The Employment Tribunal's findings were that the main body of the Vinney report was the clearest vindication of the Claimant (para 80); Professor Vinney acknowledged that when the decision was taken that a third marking was necessary it should have been done in direct consultation with the unit leader (the Claimant) (para 80). That is consistent with Mr Galbraith-Marten's suggested missing words from the original Judgment, paragraph 78. The Claimant was overwhelmingly vindicated. That was also the view of other members of staff recorded by the Employment Tribunal; the head of HR, Mr Reardon, concluded that the report upheld the Claimant's complaint (para 1200) and Professor Darville, the Head of Department, told the Claimant in an e-mail "that he had won the war that will end all wars on this one" (para 88).[58]Against that factual background we turn to the Employment Tribunal's conclusions on this aspect of the case at paragraph 111. There, the Employment Tribunal found that the report failed to exonerate the Claimant and/or confirm his marks as appropriate: he was not exonerated in the terms he was entitled to expect. They conclude:
"The University had been guilty of a fundamental breach of contract and in our view it needed to do something very clear to rectify that breach if indeed it were possible to do that."
[59]That last sentence indicates the height of the bar set by the Employment Tribunal. They doubted whether anything done by Professor Vinney could restore trust and confidence. Was that a permissible approach?[60]In our view it was not. The breach found was Dr Astin's decision to have the papers re-marked by Mr Hewitt without first consulting with the Claimant. Professor Vinney unequivocally criticized Dr Astin for doing so. In that sense he upheld the Claimant's complaint. What more could be objectively expected of the Respondent?[61]We agree with Mr Galbraith-Marten that the position here is analogous (and no more) to the position in Roberts v West Coast Trains Ltd [2005] ICR 254 , in which the Court of Appeal held that a decision by the employer to substitute a penalty short of dismissal on appeal by the employee had the effect of reviving the contract of employment terminated by the original dismissal. That dismissal 'vanished'. So, in the present case, the Claimant exercised his right to permit the employer to remedy the breach. If, as we are satisfied, this Respondent, judged objectively, did so by way of the Vinney investigation and report, then the breach was cured. When the Claimant tendered his resignation the Respondent was no longer in repudiatory breach of contract.[62]Where we find that the Employment Tribunal fell into error was in applying a subjective test; did the Claimant consider himself exonerated by Vinney so that trust and confidence was restored? Had they applied an objective approach to their factual findings as to the effect of the Vinney report when applied to the conduct found to amounting to breach they were, in our judgment, bound to conclude that the breach had been remedied. Affirmation[63]The point here is moot as a result of our finding that, properly viewed, the Respondent's breach was remedied prior to resignation. Had we found otherwise and upheld the Employment Tribunal's conclusion that it ws not remedied, we would also have upheld the finding that the Claimant had not affirmed the contract. He was entitled to wait until the Vinney report was issued; having done so he resigned within a short space of time. That he did so on notice is not inconsistent with the provisions of s.95(1)(c) ERA; in any event the Employment Tribunal was entitled to conclude (para 95) that the principal reason for the delay in leaving was the Claimant's concern to avoid disruption to his students' studies. By waiting until the end of July before finally leaving did not constitute affirmation of the contract. Unfair dismissal[64]Again this point is academic, since we have found that there was no dismissal because the breach was remedied and thus no unfair dismissal. Had we upheld the finding of constructive dismissal we should have remitted the question of fairness to the same Employment Tribunal for further consideration. Having correctly directed themselves as to the test for constructive dismissal at paragraph 12 by reference to Berriman , the Employment Tribunal then failed to deal, at paragraphs 96-112, with the Respondent's case that even if the Claimant was constructively dismissed, contrary to their primary contention, they had some other substantial reason for the conduct found to amount to a repudiatory breach of contract and that dismissal for that reason was fair under s.98(4) ERA. That question was identified as the fourth issue arising for determination (para 5). Instead, in the section headed 'Findings Unfair Constructive Dismissal – s98 ERA' the Employment Tribunal concentrate solely on the question of constructive dismissal (s95(1)(c)): they do not go on to consider the reason for dismissal and fairness under s98. Disposal[65]It follows that we allow the appeal and substitute a finding that the Claimant was not dismissed and hence his complaint of unfair dismissal fails and is dismissed. In arriving at that conclusion we have considered and reject Mr Brown's submission that the case be remitted on the issue of remedying the breach if, as we have found, the Employment Tribunal wrongly applied a subjective test in answering that question. It seems to us, on this Employment Tribunal's findings of fact to which we have referred, that on a proper application of the objective test their finding that the breach was not remedied by Vinney was plainly and unarguably wrong. Dobie v Burns International [1984] ICR 812 .

Cited in 1 later judgment