On 31 August 2021 the COVID-19 right-to-work concession allowing employers to carry out...
Constructive dismissal: employer tries to make amends
Flatman v Essex County Council
Where the actions of an employer amount to a fundamental breach of contract, nothing that the employer does after that point can cure that breach.
To succeed in a constructive dismissal case an employee must show that the employer fundamentally breached an express or implied term of their contract of employment, they resigned because of the breach, and they did not delay too long before resigning.
Ms Flatman worked as a learning support assistant in the council’s school. From September 2017 her work included caring for a disabled pupil, which involved an element of heavy lifting. She repeatedly asked for training in manual handling but this was not arranged. From January 2018 she suffered back problems, leading to three weeks signed off. In May the school head told her that on her return she wouldn’t have to do the lifting, that training was being organised and that she would be in a different class the next academic year. Despite this, she resigned and claimed constructive dismissal. A tribunal rejected her claim. It agreed that the employer was in breach of the Manual Handling Operations Regulations 1992 but held that there was still no fundamental breach because the communications in May showed that the employer appreciated the problem and was taking steps to address it. Ms Flatman appealed.
The appeal was allowed.
The tribunal had incorrectly looked only at events at the time of the resignation. Instead, it should have looked at whether there had already been such a breach at any time since September 2017. If there had been, that would activate the rule that, once there is such a breach, the employer cannot unilaterally rectify it and avoid a constructive dismissal. Provided the employee does not affirm the contract and waive the breach (e.g. by waiting too long to resign), it remains open to that employee to accept the breach and claim constructive dismissal.
If a breach of the implied duty to provide a safe working environment is relied upon (as it was here), the tribunal’s focus should be on the harm, or risk of harm, in fact caused/posed to the employee’s health and safety by the employer’s actions or inactions. When considering whether a breach of this particular implied term is fundamental, statements of intention or attitude on the employer’s part will generally have less significance than they might if the claim was for breach of the implied duty of trust and confidence but are not wholly irrelevant.
On the facts here, the only rational conclusion was that the employer’s breach became fundamental at the latest by the time Ms Flatman went off sick – and this breach was not negated by the employer’s later communications.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/0097_20_1201.html
It is perhaps a surprise that having been off sick for three weeks, returned and then waited more than a week after being told that she would receive training, that the claimant was not found to have affirmed the breach and so lost the right to bring a claim. However, these decisions are always a matter of fact for the tribunal. The decision is however a useful reminder that a fundamental breach cannot be cured by the subsequent actions of the employer.