Case

In Flatman v Essex County Council (UKEAT/0097/20) the EAT provided guidance on a situation where there had been a fundamental breach of contract arising out of the implied duty to provide an employee with a safe working environment and the timing of when such a situation could be cured by the employer. If the situation was remedied prior to there being a serious breach of contract by the employer, then it will not amount to a constructive unfair dismissal even if the employee leaves in response to that conduct; but would instead be a resignation.

Facts

Ms Flatman worked as a Learning Support Assistant in a school which included giving physical support and assistance to pupils. From September 2017 this included a disabled pupil which involved Ms Flatman 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 2018 Ms Flatman was signed off for three weeks with back pain. In communications on 21 and 22 May the  head teacher informed her 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. 

Decision

An employment tribunal found that the school was in breach of the Manual Handling Operations Regulations 1992 but 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 between Ms Flatman and the head teacher on 21 and 22 May 2018, which, it found, demonstrated that the Respondent had genuine concern for the Claimant’s health and safety, and had taken steps to ensure that she would not in future be exposed to danger. The tribunal concluded that Ms Flatman was not constructively dismissed, and so dismissed her complaint of unfair dismissal.

Ms Flatman appealed to the EAT which held that she had been constructively dismissed. The correct approach was for an employment tribunal to consider whether the breach was, or became, fundamental at any point during the course of the period from September 2017 onwards. A tribunal must consider the conduct of an employer up to the point of the fundamental breach, after which it cannot be "cured". The EAT made the following points:

• when considering whether there has been a fundamental breach a tribunal must therefore be careful only to take account of relevant conduct of the employer, and its impact, up to the point of the fundamental breach. Here the tribunal should have looked at the overall picture of the Respondent's actions, short of actually providing training, at any given point. The EAT stated that on the facts the tribunal should have found that the breach became serious around January 2018 to May 2018 when Ms Flatman reported back trouble and went off sick
• 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. This meant that the later communications regarding training etc. could not remedy the earlier fundamental breach (following the earlier case of Bournemouth University v Buckland).

Why the case matters

This decision shows that investigating and keeping records of the timeline of an employee's complaints and action taken by the employer is important to determine when, and which, of an employer's actions will amount to a fundamental breach of contract. Had the school's May communications been made, earlier when it was aware of Ms Flatman's back problems, then it would have been a far better decision to defend a subsequent claim.

In the context of a breach by an employer of its health and safety obligations, the key is for a tribunal to assess the effect on the employee of the breach i.e. the harm which is either caused to or is at risk of causing to an employee's health and safety by the employer’s actions or inactions. This approach is also very relevant to any possible COVID-19 related health and safety concerns which may become much more common as employees return to their workplace over the coming weeks and months.