Flatman v Essex County Council
An employee can resign and claim that they have been constructively dismissed only where there has been a fundamental breach of contract. In the case of Flatman v Essex County Council the question was whether an employee had lost their opportunity to rely on the alleged breach of contract by their employer where the employer had subsequently provided sufficient support to remedy any harm that may have previously been caused.
Ms Flatman claimed constructive dismissal despite the changes promised by her employer
Ms Flatman, a Learning Support Assistant, had complained that she had not received any manual handling training and that she had struggled with lifting a disabled pupil in her class. She had subsequently developed back pain which caused her to be absent from work. She was informed that upon her return she would no longer have to lift the particular pupil, that manual handling training was being organised and that a new class would be arranged for her. Ms Flatman resigned and claimed constructive dismissal.
It was held that there had there been a breach of the employer’s implied duty to provide a safe work environment. Whilst the arrangements made for her return to work might have shown that the employer was then willing to take steps to protect her health and safety, the employer’s earlier failures had amounted to a fundamental breach at a point prior to her absence. The employer’s belated actions did not cure that breach and the employee had been constructively dismissed.
The case is a reminder that once a fundamental breach has occurred the employer cannot remedy that breach. The employer may attempt to put right the wrong done and even apologise to the employee but the breach will still give grounds for the employee to resign and claim constructive dismissal. The only circumstances where the breach will no longer be relevant are where the employee has affirmed the contract and by their actions waived the breach.