Can an employer’s fundamental breach of contract be ‘cured’?

No says the Employment Appeal Tribunal (EAT) in the case of Flatman v Essex County Council, reaffirming that once an employer has committed a fundamental breach of contract such a breach cannot be remedied. 

Background

The Claimant worked as a Learning Support Assistant at the Respondent’s school.  Her duties included giving physical support and assistance to pupils.  From September 2017 she was required to give support to a disabled pupil, which involved daily weight-bearing and lifting work. She repeatedly requested, but was not provided with, manual handling training, despite assurances that steps would be taken to arrange this.  Although occupational therapists and physiotherapists visited the school they told Ms Flatman that they could not give her manual handling training, which needed to be separately arranged for her.  The training never took place.   By December 2018 she had developed back pain. 

Ms Flatman informed the school of her back pain in January, March and April.  In April, she saw her GP about her back and by 20 April said she was, “fed up with having been asking about training so many times with nothing having been provided.” She was signed off work and due to return in late May 2018.

In communications on 21 May the head teacher informed the Claimant that she would not be required to lift the particular pupil concerned upon her return to work, that the school intended to move the Claimant to another class in the next school year, and that training was being organised for her and other staff in the following few weeks.

The Claimant did not return to work, instead she resigned and claimed unfair constructive dismissal.

The Tribunal’s finding

At the first instance the Tribunal held there had been a fundamental breach of contract in respect of the failure to provide manual handling training was held to be a breach of the Manual Handling Operations Regulations 1992.  However, the Tribunal found that the Respondent was not in fundamental breach of its implied duty to take reasonable care for the Claimant’s health and safety as the Tribunal considered the May communications between the Claimant and headteacher to demonstrate 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 therefore concluded that the Claimant was not constructively dismissed, and so dismissed her complaint of unfair dismissal. The Claimant appealed the decision.

The EAT appeal outcome

The EAT found in the Claimant’s favour.  The Respondent had breached the implied duty to provide a safe work environment, by failing, despite multiple requests, to provide manual handling training, over the whole period of many months during which the Claimant was required to carry out such tasks.

The Tribunal had erred by only looking at the overall picture at the point of resignation, including taking account of the May communications. It had failed to consider, and determine, whether the point of fundamental breach had been reached at some earlier stage of the unfolding events, consideration of which could not have included those later communications.

The EAT held that the Tribunal should have considered whether the breach was, or became, fundamental at any point during the course of the period from September 2017 onwards.  The breach of the Manual Handling Operations Regulations 1992 amounted to a fundamental breach. 

Applying the principle in Bournemouth University v Buckland, actions taken by the Respondent subsequent to a fundamental breach, in this case the assurances provided by the headteacher, could not make any difference to that. 

A fundamental breach of contract cannot be cured. 

This blog was brought to you by Tess Barrett, solicitor at Didlaw