323: Why breaching an employee’s contract is a ‘forever’ problem

Where an employer has committed a fundamental breach of an express or implied term of the contract of employment, an employee has the right to resign and claim constructive dismissal. This right may be lost if the employee affirms the contract after the breach by continuing to work or delaying their resignation. However, as the recent case of Flatman v Essex County Council illustrates, an employer cannot cure a fundamental breach once it has been committed.

Ms Flatman worked as a school learning support assistant. Her daily duties included moving a disabled pupil between different specialist equipment. Despite her repeated requests, the school failed to provide any manual handling training. Eventually Ms Flatman developed severe back pain and was signed off work for three weeks. The school only took active steps to address her situation when she was due to return to work, informing her that she would no longer be required to lift the pupil, she would be assigned to another class in the next school year, and all staff would be given manual handling training within weeks. However, by this time Ms Flatman had lost faith that anything would actually be done. She resigned and claimed constructive unfair dismissal, alleging that the Council was in breach of its implied duty to take reasonable care of her health and safety.

The Employment Tribunal dismissed Ms Flatman’s claim because the school had demonstrated a genuine concern for her health and safety in its latest communications and had taken steps to ensure she would not be exposed to danger in future. The Tribunal held that in light of that concern, the school’s earlier failing to provide manual handling training was not a fundamental breach of contract.

The EAT has now allowed Ms Flatman’s appeal. The Tribunal had wrongly looked at the overall picture at the time of her resignation, rather than considering whether a fundamental breach had occurred at an earlier stage. It is an established legal principle that once there has been a fundamental breach, an employer cannot cure it. Ms Flatman’s employer had breached the implied duty to take reasonable care of her safety much earlier by failing to provide manual handling training despite repeated requests over many months. This had resulted in both a health and safety risk and actual harm to Ms Flatman. Since there had already been a fundamental breach by the time she returned from sickness absence, the school’s attempts to put things right did not cure it. The EAT held that Ms Flatman had not affirmed the breach by that time but had soldiered on hoping that the promised action would materialise. She was therefore entitled to resign, and her constructive unfair dismissal claim succeeded.

This case is a reminder that a fundamental breach of contract cannot be cured. However, in practice, despite the strict legal position, employers can often resolve a breach by taking remedial action before the situation escalates and the employee resigns. Particularly in light of the increased risk of litigation due to COVID-19, this case is also a reminder of the importance of addressing any health and safety issues raised by staff promptly and effectively.