In order to claim constructive dismissal, claimants have to show that the employer was guilty of a fundamental breach of contract, among other things. In Flatman v Essex County Council the Employment Appeal Tribunal (EAT) held that once the actions of the employer amount to a fundamental breach, they cannot then cure it after that point.
Basic facts
In September 2017, Ms Flatman (a learning support assistant) was assigned to help a disabled student, referred to as AB, which involved carrying out weight-bearing and lifting manoeuvres.
Despite making repeated requests over a period of several months for manual handling training and despite receiving assurances that it would be arranged, none was provided. In January 2018 Ms Flatman reported that she was suffering with back pain but again was not given any training, despite further assurances. In April she went to see her GP about her back. At the beginning of May she was signed off work for three weeks with back pain.
On 21 May she spoke with the head teacher who told her that she would be moved to another class on her return so that she would no longer have to lift the pupil and that training was being organised. On her return to work the next day, the head teacher repeated her intention to move Ms Flatman to another class and referred to the need to train other members of staff so that they could support AB. Ms Flatman said that she did not want to move class nor did she believe that the training would materialise.
She resigned on 5 June and claimed constructive dismissal on the basis that the council had breached health and safety regulations and/or the implied obligation to provide a safe place of work by failing to carry out a risk assessment and failing to provide her with the relevant training.
Tribunal decision
Although the tribunal held that the council was in breach of health and safety regulations, it rejected Ms Flatman’s contention that it was in fundamental breach of its implied duty to take reasonable care for her health and safety.
In coming to that conclusion, it pointed to the communications between Ms Flatman and the head teacher on 21 and 22 May which it said was a clear indication that the school had genuine concern for her health and safety and had taken steps to ensure that she would not in future be exposed to danger. As such, the council was not guilty of a fundamental breach of contract and Ms Flatman had not therefore been constructively dismissed.
Ms Flatman appealed on the basis that the tribunal had not considered whether the breach of contract was a fundamental breach at any time before she resigned, including before 22 May.
EAT decision
Upholding the appeal, the EAT said that the clear basis of Ms Flatman’s complaint of fundamental breach was that, despite asking for training over many months, the employer had failed to provide it.
It had therefore been incumbent on the tribunal to consider whether, at any point during that time (rather than just at the point of resignation), the school’s conduct amounted to a fundamental breach.
If it had done so, it would have found that the breach became so serious as to be fundamental at some point between January and the start of May 2018 because of the increased risk of causing Ms Flatman harm. This was not a case where the actions of the employer would have prevented the situation escalating into a fundamental breach.
The EAT held that on these facts there was only one possible conclusion - namely that the employer acted in fundamental breach of contract prior to 21 and 22 May 2018. It therefore substituted a finding of constructive dismissal.
Comment
This case is a reminder of the important principle established in Buckland v Bournemouth University Higher Education Corporation (weekly LELR 163) that once there has been a fundamental breach of contract in a claim for constructive dismissal, the employer cannot cure it.