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Archaeologist wins constructive dismissal case

2 March 2010

Fundamental breaches of employment contracts, or any other type of contract, cannot be “cured”, the Court of Appeal has ruled.

Professor Paul Buckland, an environmental archaeologist at Bournemouth University, claimed constructive dismissal in a dispute over exam marking.

The court heard that after Buckland had marked a set of papers and had them remarked, university staff arranged for further marking to be carried out, resulting in some students being able to pass if their results in other subjects were good enough.

Delivering judgment in Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, Lord Justice Sedley said the requirement of mutual trust and confidence was the fundamental term in Buckland’s employment contract which had been breached.

He rejected counsel for the university’s argument that the breach was not fundamental because it was “within the band of reasonable responses”.

He said that, having committed a fundamental breach, a defaulting party could not choose to retreat. “What it can do is invite affirmation by making amends.”

Sedley LJ went on: “To introduce into this relatively clear pattern of law an exception where amends have been made or offered for a fundamental breach is to open up case after case to an evaluation of whether the amends constituted an adequate cure of the breach.”

Sedley LJ said that the court was not “justified in releasing the contents of this Pandora’s box into the general law of contract”.

He allowed Buckland’s appeal. Lord Justices Carnwath and Jacob agreed

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