Constructive Dismissal: Can an Employer Just Apologise and Make it All Better?

The Employment Appeal Tribunal (EAT) has recently held that it remains the case that once a fundamental breach has been committed (allowing an employee to resign in response), it cannot be cured, no matter what steps the employer takes to try and remedy the situation.

What does the law say?

Employees have the right to resign and claim that they have been constructively dismissed in situations where their employer has committed a serious breach of an expressed (written down) or implied (not written down) term of their employment contract.

To be successful in a claim for constructive dismissal, a claimant must prove:

1)     That there has been a serious breach of their contract by the employer.

2)     That they have resigned in response to that breach (rather than for some other reason).

3)     That they did not delay too long in resigning.

Regardless of the employee’s actions following the breach, if the employer’s breach is serious enough (either on its own or as part of several different, smaller breaches), it cannot be cured. This means that there is nothing the employer can do to try and rectify things.

Facts of the case

Ms Flatman worked as a learning support assistant at a school in Essex. She was employed by Essex County Council (ECC). Her role required caring for a disabled pupil, which involved an element of heavy lifting. Ms Flatman repeatedly requested manual handling training in order to undertake her work safely but this was never arranged by ECC.

Ms Flatman eventually developed back pain which became increasingly severe, requiring her to be signed off for 3 weeks. Upon her return, Ms Flatman was advised that she would no longer be required to do the lifting, would instead be assigned to another class in the next school year and that training was being organised. Despite this, Ms Flatman resigned and claimed constructive unfair dismissal.

What was decided?

The Employment Tribunal dismissed the claim. They held that there was no fundamental breach of ECC's implied duty to take reasonable care of Ms Flatman’s health and safety. This decision was based on the fact the employer was taking steps to address the problem. Ms Flatman appealed this decision.

The appeal was allowed. The EAT had looked only at the overall picture at the time of the resignation. Instead, it should have looked at whether there had been such a breach at any time since she started her role. By failing to provide training and requiring her to lift the pupil on an ongoing basis, ECC had breached the implied duty to provide Ms Flatman with a safe work environment.

The EAT concluded that the breach had become fundamental (so as to allow her to resign in response and claim constructive dismissal) when Ms Flatman was signed off sick. Ms Flatman had repeatedly requested training and ECC had repeatedly promised it. The risk of harm increased throughout the period, with the result that she was eventually signed off sick, having suffered significant harm. It could not be said that Ms Flatman had affirmed the contract between this period and her resignation, so as to defeat her claim for constructive dismissal.

The EAT overturned the tribunal’s decision and substituted a finding of constructive unfair dismissal.

What does this mean for employers?

Whilst the legal position is that a fundamental breach of contract cannot be cured, the commercial position might well be slightly different. Even when the legal position is irreversible, an employer’s attempt to make goodwill often be enough to resolve the matter with the employee and avoid a dispute

Lloyd Clarke is a Partner of Attwells Solicitors LLP and heads up the firm’s Employment Law Department. Lloyd operates flexible funding arrangements including popular retainer packages, fixed fees, and reduced hourly rates.

Email Lloyd for any employment advice - lloyd.clarke@attwells.com or call him on 01206 239761.