Constructive dismissal: Employer cannot cure fundamental breach once committed

John Cook

In order to succeed in a constructive dismissal case, (a form of unfair dismissal, where the employee resigns), an employee must prove:-

  1. The employer committed a fundamental breach of an express or implied term of the contract of employment.
  2. The employee resigned as a result of the breach.
  3. The employee did not delay too long before resigning or the breach may be waived (affirmed).

In the case of Flatman v Essex County Council UKEAT/0097/20 The Employment Appeal Tribunal held that a tribunal had failed to identify whether a fundamental breach of contract by the employer had occurred before the point of the employee’s resignation.  The EAT also confirmed that, once committed, a fundamental breach cannot be cured.

Facts

Ms Flatman worked in the Respondent’s school as a Learning Support Assistant. Her duties included giving physical support and assistance to pupils. In particular, from September 2017, she was required to give support to a disabled pupil, which involved her in daily weight-bearing and lifting work. Over a period of months she repeatedly requested, but was not provided with, manual handling training, despite assurances that steps would be taken to arrange this. From around Christmas time she also began to develop back pain, of which she began to inform the School in January 2018. At the beginning of May Ms Flatman was signed off for three weeks with back pain. In communications on 21 and 22 May, the head teacher informed Ms Flatman that she would, upon her return, not be required to lift the particular pupil concerned, that she would be looking at moving Ms Flatman to another class in the next school year, and that training was being organised for her and other staff in the following few weeks. Ms Flatman subsequently resigned and claimed unfair constructive dismissal. An employment tribunal dismissed her claim, finding her employer not in fundamental breach of its implied duty to take reasonable care of her health and safety. Communications at the point of her return demonstrated genuine concern for her health and safety. Ms Flatman appealed.

Decision

The Employmnet Appeal Tribunal allowed her appeal. The employer had breached the implied duty to provide a safe work environment by failing, despite repeated requests, to provide training over many months when Ms Flatman was required to lift the pupil. The tribunal were wrong to only look at the overall picture at the point of resignation. The focus in a case such as this should have been on whether, at any point during the relevant period, the breach became fundamental (it had due to the increased and continuing risk and actual harm caused), and whether the contract had been affirmed (it had not). The breach became fundamental at the latest by the time she went off sick. While statements of intention, such as the provision of training, are not necessarily irrelevant if accompanied by actions, they are less significant than in cases involving a breach of the implied duty of trust and confidence. A finding of constructive unfair dismissal was substituted.

Case: Flatman v Essex County Council UKEAT/0097/20

John Cook – Solicitor

John Cook

I am a qualified Solicitor with over 30 years’ experience running a business, managing a team, appearing in the Employment Tribunal and advising on almost every conceivable employment law and HR issue. Clients appreciate my down to earth and straight forward approach that allows them to achieve results and manage their organisation more effectively. I take the worry out of employment law and HR issues with a proactive and robust approach.