Employemt Law

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Identify and analyse the legal issues related in Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ121. Critically evaluate the effect of this decision on the law relating to constructive dismissal.

When reviewing the case of Buckland vs. Bournemouth University it s clear to see how the case was unusual in relation to the employment laws regarding constructive dismissal. This can be said due to how it relates to the human rights laws, the ability for employees to prove their claim, the way in which the law perceives the range of reasonability in regards to fundamental breaches of employment contracts and this paper will touch on all these issues.

Until the last quarter of the 19th century the law in this country the law was mainly used to control the labour market in favour of employers but now the law plays a significant role in the development of industrial relations.

When a person is offered employment they freely enter into a contract that is between the employee and the employer and both of the parties are considered equals. However, when the employee enters into a contract they can??™t usually negotiate any of the terms and conditions of employment and they seem to always be in a far weaker position than the employer is. Thus, the relationship is unbalanced and in regulating this relationship, the law is used in favour of the employer. ???Laissez faire- let us do as we wish??? was the predominant influence of the
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19th century. This ???liberalism??? (Hyman 1975), gave the employers the ability to exploit workers as they saw fit, without government interference and although contracts were entered into freely, they would invariably be on the employers??™ terms.

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If an employer dismisses their employee, regardless of their length of service they may complain to an employment tribunal to bring proceedings against their employer who they feel may have infringed their rights. (Lewis D 2004) An employee can take their employer to an employment tribunal for numerous issues and as long as these are clear and reasonable they do not need to state the main right infringement at the outset of the complaint. Providing the employees act in good faith they are protected regardless of whether that right has in fact been infringed. (Lewis D 2004)

The human rights act is an important factor within employment, it began during the Second World War and is now an act of parliament and this came into force in the year 2000. This act and later amendments cover a whole range of issues and helps protect people??™s lives and also to protect private authorities.

Constructive dismissal is a complex area of employment law.?  As a general rule of thumb, employees can resign and bring a claim if they are exposed to either one act or a series of actions by their employer which fundamentally breaches the contract of employment by completely undermining the employer??™s implied duty of trust and confidence to the employee.?  Where there has been a series of actions, there has to
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be an act which constitutes the ???final straw??™ although this need not be the most serious of the series of actions. In relation to the case of Buckland vs. Bournemouth University the ???final straw??™ could be said to be how the university undermined his status by remarking his coursework, however the main reason for the claim was Professor Buckland??™s perceived lack of trust and support from his superiors and colleagues. (Bailii.org 2010)

To break the contract the employer must be said to have committed a fundamental breach of contract and this must include more than just unreasonable behavior by the employer. This is classed as wrongful dismissal which is not the same as constructive dismissal but if the employee decided to then resign in response to this breach they are said to have accepted the fundamental breach. (Kidner R 2009) It be could be argued that the decision by Professor Buckland to work out his notice is not in line with this and if he had really found his position untenable he would have left at the soonest possible opportunity, instead of working the 5 months notice. Professor Buckland does however feel he was required to stay out of an obligation to his students. By not bringing proceedings until after his period of notice this may affect future cases by allowing employees to go further back into their employment with complaints.

If the employee then resigns in response to this breach he is said to have accepted the fundamental breach, then the contract is discharged and the employee is free of
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all obligations under that contract.?  If the employee decided he doesn??™t want to accept the breach or resigns due to some other related issues he may be said to have affirmed the breach. (Kidner R 2009)

It is emphasised that many people in employment can be faced with issues relating to their contracts and this can lead to unfair dismissal, tribunals and court cases. The case of Buckland v Bournemouth University is a constructive dismissal case where an employee Paul Buckland was employed by Bournemouth University, he failed a high number of students, 14 out of 16 who had his work second marked and these results were agreed by the exam board. Buckland??™s decision was criticised by the programme leader who then took it upon himself to re-mark the papers, the examination board then arranged to have the papers re-marked by another member of staff without Buckland??™s consent. Mr Buckland made a formal complaint to the University who then started an enquiry to the incident but resigned claiming constructive dismissal. Trust and confidentiality was broken and said to be a fundamental breach by the court of appeal by remarking the papers without his consent. The court did not accept the breach of contract and stated that it was for Buckland to decide whether to terminate his own contract. (Bailii.org 2010)

Professor Buckland was said to have been constructively dismissed due to the university not informing him that his papers were going to be remarked even though the board of examination had agreed to the original marks. This incident has a major
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effect with the confidence and trust of his fellow employees which lead to a breakdown in the relationship.

The tribunal also stated that the university??™s initial inquiry had not included the original breach. The Employment Appeal Tribunal (EAT), however, overturned the tribunal decision, holding that the university??™s inquiry had cured the original breach. Professor Buckland appealed to the Court of Appeal.

Restoring the tribunal decision, the Court of Appeal said that there was no authority to support the tribunal assertion that a fundamental breach can be remedied in constructive dismissal cases. The court also held that the ???range of reasonable responses??? test is not appropriate for deciding whether or not there has been a fundamental breach of contract in constructive dismissal cases.

Resignation is deemed to be a dismissal in circumstances where an employee has resigned in response to his or her employers breach of contract and feels there is no other option available in continuing with his or her employment. This is classed as “constructive dismissal” and an employee can bring claims both for breach of contract and for unfair dismissal if he or she can show that the employer has committed a fundamental breach of contract. This breach must be shown to be clear and have definitive proof, this is the hardest point of the case for most claimants as
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they mostly rely on ???off the record???conversations and hear say with very little in the way of substantial proof. If the resignation is in response to alleged discrimination because of a protected characteristic, i.e. age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex or sexual orientation, marriage

and civil partnership, the employee may also be able to bring a claim under the Equality Act 2010. (Lewis D 2004)

Usually when a contract of employment is terminated by mutual consent on both parties the employee doesn??™t really have any entitlement to claim unfair dismissal against his employer. However, if the facts surrounding the termination indicate that pressure was brought to bear by the employer on the employee to resign, it could be held that the employee was in fact dismissed. A court or tribunal would also then need to establish whether there was an equality of bargaining position between the parties or if any offer was presented on a take it or leave it basis and used as a method to force an employee to “resign”. (Hendy J 1993)

The Court gave a further issue consideration, whether if there was found to be a dismissal whether the employer acted reasonably in dismissing Mr Buckland given that they had denied dismissing him in the first place. In this case, the Court had to look at whether the employer was reasonable in its undermining of Mr Buckland. As
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the employer had not admitted doing this then the employer could not justify it. However, the Court stated that this could not be the case in all constructive dismissal cases. This case shows that the tests that were carried out were applied in conjunction with constructive dismissal. For a fundamental breach of contract the objective test must be applied and a range of reasonable response tests had to be present when the employer tries to justify its actions. ( Bailli.org 2010)
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The actions of the remedy are relevant even though they cannot cure a breach but they can consider accepting or affirming the breach even though they are under no obligation to do so. Time limit doesn??™t necessary play an important factor when it comes to dismissal, however, in some cases the employee may find it harder to bring a successful claim of constructive dismissal against the employer. For example the longer a breach of contract is left by the employee then the less viable it is to prove that it left them with little option to resign.

The final issue above is more difficult to understand and little guidance was given by the Court as to when an employer attempting to justify something they have not admitted to doing could be successful. More guidance from the Courts is needed to help employers and practitioners alike in its interpretation.

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In the remaining years of the 19th century the law has played a significant role in helping to develop industrial relations, before this is mainly used to control the labour market and this was in favour of employers. Towards the end of this era trade unions began to be recognised by the government and with the forming of the Labour party political representation followed. Further to this ???immunities??™ were granted that were granted under the Trade Disputes Act 1906. These laws combined had a positive effect on the employment rights and relationships up until the end of the 20th century.

The Conservative??™s introduced reforms to help protect the rights of individual employees; this was to include a reduction in unfair dismissal claims, women and young employees??™ issues and the possibility of abolishing the wage councils. ( Lewis D 2004)

As well as this the role of the Government as a model employer also changed. According to Metcalf, D. (1989) the recognition of Trade Unions, the removal of pay bargaining rights, the rejection of the principle of pay comparability in favour of what the market determines, the changed rules concerning local government tendering and the encouragement of the ???contracting out??™ of services and establishment of ???agencies??™ has set a different example to private sector companies, which induced another change to employment relations.

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It is quoted by Rose (2001) that ???it is highly unlikely that there will be a return to the largely autonomous voluntarism system which characterised employment relations up to 1979??? and ???the framework established is likely to remain intact, for the foreseeable future at least???.

Even though radical changes happened when the conservative government was in power, the Labour Government contributed to these changes with involvement from the European Union. (Rose 2003) stated that the New Labour is ???geared more toward continuity with the policies of previous Conservative government than with promoting radical change. ??? (Rose 2003)

The Labour Government introduced The 2002 Employment Act which included the national minimum wage but was pointed out by Rose 2003 that ???The balance of power between employers and employees in the workplace even where unions are recognised, hardly changed as a result of legislative developments; employers are likely to remain in the ascendancy and continue to dominate the employment relations agenda for the foreseeable future (IRS, 1999; Kessler and Bayliss, 1998 Smith and Morton, 2001, Dickens and Hall 2003).??? These two acts are said to ???contain EU inspired provisions which improve individual rights at work???.

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Therefore the European Union have influenced the changes made by Labour and they will probably carry on being highly influential in determining policies such as Age and Gender at work and Equal Pay Rights.

It is also mentioned by Rose (2003) that the changes made by the New Labour Government, are not a significant part of Employment Relations. Only time will tell to see if Labour is to have a profound effect, which the Conservatives had, on Employment Relations.

In the case of Claridge v Daler Rowney Ltd, [2008] IRLR 672 it was suggested that the range of reasonable responses test should only come into play when the tribunal is considering the third limb of the implied term of confidence and trust. Thus an employee will only be able to gain a satisfactory outcome from the court if his employers conduct had caused serious damage and ruined the employment relationship and the behaviour constitutes to reasonable responses. The Abbey National and Claridge cases were cases that involved complaints about the handling
of grievance procedures rather than the imposition of disciplinary sanctions but the tribunal in Bournemouth University v Buckland [2009] IRLR 606 and Nationwide v Niblett (Lawtel 8th July 2009) confirmed that similar considerations arose in the context of disciplinary cases. Unfortunately these two cases were heard within a few weeks of each other and two differently constituted tribunals came to rather different conclusions as to the correct approach. In the Bournemouth case the tribunal came
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to the rather stark conclusion that the band of reasonable responses test had no application in constructive dismissal cases. The tribunal in the Nationwide case took a broader view stating that they did not consider it wrong for a tribunal to ask itself whether an employer has acted reasonably or unreasonably so long as it went on to ask the fundamental question whether the conduct, even if unreasonable, was calculated to destroy or seriously damage the relationship of trust and confidence between the employer and employee.

In conclusion the primarily concern with this case was not with the academic quality of the work but with the matters that fell into the category of the actual Employment Law itself. The tribunal stated that the set of marks proposed by the three external examiners were not supported by the exam board so the issue relating to the assessment was closed. In an internal enquiry at the university they clearly found that Buckland??™s methods of marking were satisfactory and in no way to blame for the poor results, contrary to earlier statements made. However Buckland still resigned and claimed unfair dismissal. The internal enquiry found that in 2006 amounted to be a beach of conduct which lead Buckland to resign and claim constructive dismissal and the case claimed that the damage that had been done was repaired by

the internal enquiry but the court of appeal found that as a matter of law there was nothing the university could have done to remedy it??™s breach of contract no matter how reasonable or professional Buckland may have been in refusing to accept the outcome of the internal enquiry. The university was disappointed with the outcome
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but accepted it and no further action was taken. Employers need to be particularly wary of accepting that there has been a breach of contract, as the employee may then use that as an admission in subsequent tribunal proceedings.

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Bibliography

Dalton, A. (1998) Safety, Health and Environmental Hazards at the Workplace

Hendy, J. (1993) A Law Unto Themselves: the Conservative Employment Laws Institute of Employment Rights.

Hendy, J. (2001) Union Rights and Wrongs: The Reform of Britain??™s Anti-Union Laws Institute of Employment Rights.

Hyman, R. (1995) The Historical Evolution of British Industrial Relations in Edwards, P. (ed) (1995) Industrial Relations: Theory and Practise in Britain Blackwell

Hyman, R (1975) Industrial Relations: A Marxist Introduction Macmillan

Kahn-Freund, (1954) ???Legal Framework??? in Flanders and Clegg 1954.

Kelly, J. (1998) Rethinking Industrial Relations: Mobilization, Collectivism and Long Waves. Routledge.

Kessler, S. Bayliss, F (1992) Contemporary British Industrial Relations Macmillan.

Kidner, R( 2008-2009) Employment Law Blackstone??™s Statutes Oxford University Press

Lewis, D. Sargeant, M. (2004) Essentials of Employment Law cipd London

Liff, S. Equal Opportunities: Continuing Discrimination in a Context of Formal Equality in Edwards, P. (ed) Industrial Relations: Theory and Practise in Britain (1995) Blackwell.