Too Little Too Late…

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Wiggin

Contributor

Wiggin
In this case, the Employment Appeal Tribunal reaffirmed the principle that a fundamental breach of contract (in the context of a constructive dismissal claim) cannot be cured.
UK Employment and HR
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Flatman v Essex County Council UKEAT/0097/20

In this case, the Employment Appeal Tribunal (EAT) reaffirmed the principle that a fundamental breach of contract (in the context of a constructive dismissal claim) cannot be cured.

The employee in question in this case, Ms Flatman, brought a constructive dismissal claim following her resignation as a result of her employer allegedly failing to provide a safe system of work.

Ms Flatman was a Learning Support Assistant who had to carry out lifting manoeuvres when supporting a disabled pupil. She had requested manual handling training on a number of occasions but this was not provided and she was signed off work with back pain. On her return to work, she was told that training was being organised and that the school was looking into moving her to another class so that she didn't have to lift the pupil. Ms Flatman resigned before the training or the move took place.

Ms Flatman's claim was rejected by the Employment Tribunal which found that her employer had demonstrated genuine concern for her in the return to work conversations. However, the EAT held that the Tribunal had erred in failing to consider whether there had been a fundamental breach at any time before the return to work conversations took place. The EAT determined that there had been a fundamental breach by the employer and that this had not been waived by Ms Flatman who had resigned in response to it. She had therefore been constructively unfairly dismissed.

This is an interesting case although the outcome isn't particularly surprising. It's a useful reminder of the importance of promptly dealing with employee concerns as, once a fundamental breach has occurred, it cannot later be cured.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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