Case Watch- Employment Law
The following case was reported on 14 May 2010 in Times OnLine Law reports:
Before Lord Justice Sedley, Lord Justice Carnwath and Lord Justice Jacob judgment made February 24 2010.
A repudiatory breach of contract, once it had happened, could not be cured by the contract breaker.
The Court of Appeal so held in a reserved judgment in allowing an appeal brought by the claimant, Professor Paul Buckland against the decision of the Employment Appeal Tribunal (Judge Peter Clark, Mrs A. Gallico and Mr B. R. Gibbs) (2009 ICR 1042) who had allowed an appeal brought by the employer, Bournemouth University Higher Education Corporation from an employment tribunal at Southampton (Mr E. J. Twiss, Mr J. Shah and Mr D. S. Robinson). The court also dismissed a cross-appeal by the employer.
Mr Antony White, QC and Mr Tom Brown for Professor Buckland; Mr Jason Galbraith-Marten and Mr Ed Williams for the university.
LORD JUSTICE SEDLEY said that the case raised important and unresolved questions of employment law, one of which was whether an employer who had committed a fundamental breach of contract could cure the breach while the employee was considering whether to treat it as a dismissal.
The fundamental term of the claimant’s contract of employment which the tribunal held to have been breached was the requirement of mutual trust and confidence. The employer did not contend that that finding was not open to the tribunal, but by its cross-appeal contended that it was a response to the wrong question: The tribunal should have asked whether what the employer had done was within the range of reasonable responses open to it in the situation confronting it.
The tribunal, having found a repudiatory breach on the employer’s part, asked and answered a question which neither party had put to it: By the time the claimant purported to accept the breach by giving notice of termination, had it been cured? It was common ground that no decided cases held in terms that a repudiatory breach was capable of being remedied so as to preclude acceptance.
Albeit with some reluctance, his Lordship accepted that if their Lordships were to introduce into employment law the doctrine that a fundamental breach, if curable and if cured, took away the innocent partyâ€™s option of acceptance, it could only be on grounds that were capable of extension to other contracts.
That did not mean, however, that tribunals of fact could not take a reasonably robust approach to affirmation; a wronged party, particularly if it failed to make its position entirely clear at the outset, could not ordinarily expect to continue with the contract for very long without losing the option of termination, at least where the other party had offered to make suitable amends.
Lord Justice Carnwath and Lord Justice Jacob delivered concurring judgments.