Sorry seems to be the hardest word...

Jane Byford

 As I’m sure you will remember, in 2010 the Court of Appeal decided the case of Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121. It found that once the employer has committed a fundamental breach of the contract, it cannot simply acknowledge it was wrong and promise to apologise to make it all better. That meant that for some employers they would never accept any wrong doing at all- after all since the employer could not repair the damage, it would be imprudent to then admit its guilt.

However, in the recent case of Assamoi v Spirit Pub Company (Services) Ltd UKEAT/0050/11, the Employment Appeal Tribunal (EAT) decided that where an employer's behaviour towards an employee had the potential to amount to a fundamental breach but had not quite done so, how the employer responded to the employee's grievance - admitting fault and apologising where appropriate- could well make the difference between whether a fundamental breach will be found or not.

Clearly then, where an institution believes a constructive dismissal claim may be on the cards, its decision about whether to accept the blame and apologise may be determined by whether it thinks a fundamental breach has occurred. However, this will almost always be a fine distinction to draw. So, what are institutions to do?

Has a fundamental breach occurred?

Unfortunately, not much assistance was given by the EAT in Assamoi . It held: "There is a fundamental distinction, which is perhaps more easy to recognise than to define, between there being a fundamental breach of contract that an apology by an employer cannot cure and there being action by an employer that can prevent a breach of contract taking place." If the court was at such difficulty to define the distinction, perhaps it may not be such a fundamental one after all.

Things get worse for employers in this space between Buckland and Assamoi as there no litmus test in law that tribunals use to determine whether or not a breach is serious enough to be fundamental. The breach must go the root of the contract but this of course will turn on the facts on each case.

Importance of impartial grievance proceedings

Whilst the state of the law remains confusing, institutions should be reminded of the importance of independent and objective grievance officers. If the institution is likely to be blamed, it should think about drafting grievance responses that have the ability to mend a potentially broken relationship without giving the employee ammunition to use against it in a future claim. In the right circumstances, institutions may find that it a whole lot easier to apologise than risk some very damaging litigation down the line.

Jane Byford
Partner and Head of Employment
For and on behalf of SGH Martineau LLP
DD: 0800 763 1 378
M:  079 07 925950
F: 0800 763 1001
International DD: +44 870 763 1 378

From → Human Resources

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