Constructive dismissal: Can an employer cure a fundamental breach?

An employee with two years’ continuous service with their employer is protected from being unfairly dismissed. This includes constructive unfair dismissal. Constructive dismissal arises when the employer commits a fundamental breach of the employee’s contract of employment and the employee resigns as a consequence of that breach. The employee should resign promptly, in order to avoid any suggestion that they have waived or accepted the breach of contract.

In a recent case, the Employment Appeal Tribunal considered whether an employee had been constructively dismissed when she resigned after her employer failed to provide her with training despite their assurances that this would be forthcoming.

Background

In Flatman v Essex County Council, Ms Flatman worked as a Learning Support Assistant. Her duties involved giving physical support to pupils, including daily lifting of a disabled pupil. Over a period of months from September 2017 she repeatedly requested manual handling training, but this was not provided despite assurances that this would happen. She developed back pain in December 2017 and informed her employer of this. She was signed off work for three weeks in May 2018. The Headteacher advised that on her return she would not be required to lift the pupil and that training was being organised for her and other staff in the following few weeks. However, Ms Flatman resigned and claimed constructive unfair dismissal. She said that her employer had breached the implied term within her contract to provide a safe working environment.

The Employment Tribunal’s decision

The Employment Tribunal found that the employer was not in fundamental breach of its implied duty to take reasonable care for Ms Flatman’s health and safety. The Tribunal took account of the communications from the Headteacher sent just before Ms Flatman resigned, which it found demonstrated that the employer had genuine concern for her health and safety and had taken steps to ensure that she would not be exposed to danger in the future. On that basis, a fundamental breach of contract had not been made out. The decision was appealed.

The Employment Appeal Tribunal’s view

Ms Flatman’s appeal was allowed. Her employer had breached the implied duty to provide a safe working environment by failing, despite repeated requests over several months, to provide training. The Tribunal had been wrong to only look at the overall picture at the point of resignation. The focus should have been on whether at any point during the relevant period the breach became fundamental. In this case the breach became so serious to be fundamental at some point between when Ms Flatman started experiencing back pain and when she was signed off sick. Ms Flatman had not affirmed the breach because she was regularly asking for training and was hoping that it would happen due to the promises made to her. The breach was described as “prolonged and exacerbated”. A finding of constructive unfair dismissal was therefore made.

Curing the problem?

This judgment reaffirmed existing case law that once a fundamental breach of contract has been committed by the employer, it cannot be ‘cured’. However, it may be possible to prevent a potential breach of contract from becoming fundamental in the first place by taking decisive action when a problem initially arises. If Ms Flatman’s employer had provided her with the training when she first requested it, or within a reasonable time, then this case may have been decided differently. Taking legal advice when problems arise can turn a situation with an unhappy employee around and help employers to avoid ending up in the Employment Tribunal. We regularly advise our employer clients on how to nip tricky situations in the bud so do get in touch if you have a situation you would like to talk through.