An employer cannot cure a fundamental breach once it has been committed


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The Employment Appeal Tribunal (EAT) has held in Flatman v Essex County Council that a tribunal had erred by failing to identify whether a fundamental breach of contract by an employer had occurred before the point of an employee's resignation and reaffirmed that, once committed, a fundamental breach cannot be cured.

Mrs Flatman worked as a Learning Support Assistant. Her duties involved daily lifting of a disabled pupil, and she repeatedly requested manual handling training, but was not provided with it. She developed back pain and was signed off work. She was told that, on her return, she would not be required to lift the pupil and was promised training again, but she resigned and claimed constructive dismissal. The tribunal dismissed her claim, finding that the employer was not in fundamental breach of its implied duty to take reasonable care of her health and safety.

The EAT overturned the tribunal's decision. The employer had breached the implied duty to provide a safe work environment by failing, despite repeated requests, to provide training over many months when Ms Flatman was required to lift the pupil. The tribunal had erred by only looking at the overall picture at the point of resignation. It should have focussed on whether, at any point during the relevant period, the breach became fundamental (here it had due to the increased and continuing risk and actual harm caused), and whether the contract had been affirmed (it had not). The breach had become fundamental at the latest by the time she went off sick. The EAT substituted a finding of constructive unfair dismissal.

Take note: Once an employer has committed a fundamental breach of contract it is not possible to rectify it. Here the claimant's frequent requests for training had been ignored, so the promise to provide training on her return to work, after being signed off sick, could not cure the breach which had already occurred.

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