An Employer Cannot Cure A Fundamental Breach Once It Has Been Committed

• Published date: 08 June 2021
• Subject Matter: Employment and HR, Unfair/ Wrongful Dismissal, Health & Safety, Employment Litigation/ Tribunals
• Law Firm: Trowers & Hamlins
• Author: Ms Emma Burrows and Nicola Ihnatowicz

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...