‘Curing’ constructive dismissal reviewed by EAT

Suppose a manager makes a mistake in dealing with an employee and the individual is about to resign and may go on to bring a claim of constructive unfair dismissal. Can you rectify the situation before they resign? How do you handle that situation?

A useful case which helps on this point has been handed down by the EAT and it serves as a reminder of where the line is drawn in these cases. So, if the mistake is sufficiently serious it will be a fundamental breach of contract and that is too late, legally, for the employer to rescue the situation and, in that event, the employee is entitled to resign and claim constructive unfair dismissal. However, if it has not yet reached that point, so the breach isn’t yet so serious, it is not too late and management may be able to intervene, prevent the resignation, avoid the claim and, perhaps, retain a valued employee We will come onto the lessons employers can take from this case shortly, but first the facts, briefly.

This is the case of Flatman v Essex County Council. Miss Flatman was employed as a Learning Support Assistant in one of the Council’s schools. One of her duties was giving physical support and assistance to pupils including a disabled pupil which involved physical lifting. Over a period of months, she repeatedly requested manual handling training, but it was not provided. She went off sick with back pain, long term, during which time the Council was in communication making a lot of promises – that she wouldn’t not have to work with the pupil in the future, she’d be assigned to a different class and she’d be provided with the training. That didn’t materialise so she resigned and brought her claim. The tribunal ruled against her on the basis that at the time of resignation, the implied term that employers should take reasonable care for the health and safety of their employees, had not been broken because the Council had showed a genuine interest in the Claimant’s health. Miss Flatman appealed, successfully, to the EAT which ruled that, at the point of resignation, the implied term had indeed been breached and whatever followed afterwards was too late. So, where the actions of an employer amount to a fundamental breach of contract, nothing that the employer does after that point can cure that breach and, provided that the employee doesn’t affirm the contract and waive the breach, it remains open to the employee to accept that breach and claim constructive dismissal. 

So, let’s get a reaction of that decision. Sarah Ashberry has seen this situation arise many times over the years. I phoned Sarah to discuss the case and get her view on if and how these situations can be rescued. I started by asking her about the support that was offered by the Council:

Sarah Ashberry: “It was the right actions but by the time they did it a fundamental breach had already arisen because they had not taken appropriate steps to ensure her health and safety and the damage had already been done. We do see this kind of thing all the time, obviously things do go wrong, and we would normally advise that of course it's appropriate to try and intervene to save or salvage the situation at whatever stage the problem is discovered. In law, it may be that you're technically too late but in practice you're never too late because situations can be salvaged even quite bad ones and obviously HR has a key role to play in that kind of thing. The timing of the intervention is key. So, in this Flatman case it came too late so, legally, the horse had already bolted. There's another case involving a Mr. Assamoi who was a kitchen manager and in his case something had gone wrong but the employer’s intervention sort of came in the nick of time in that it prevented the situation reaching the level of what the tribunal found was fundamental breach level. So, they caught it in time in that one, which is a good example of how it is possible, with timely action, to kind of walk it back from the brink. So yes, and I think with the COVID it's made health and safety front and centre for an awful lot of people, including people who've never really had to think about their health and safety at work before. It's just not been an issue for lots of office workers, for example, and now it completely is. So, I think the message would be don't let these things fester, communicate directly and immediately with employees who raise concerns of this nature.”

Joe Glavina: “You made a point about how it might be legally too late to rescue the situation because the breach has already taken place, but, of course, the employee might not realise that if they’ve not yet taken legal advice, so it can still be rescued.”

Sarah Ashberry: “Yes. I think employers can be worried about constructive dismissal claims, and maybe over worried because to bring a claim of constructive dismissal is no kind of mean feat, because first of all, the person has to walk, and that's not for everybody. So, people who might be considering or threatening resignation, a lot of times probably wouldn't do because it's quite a nuclear action and not everyone feels able to do that. So, not all potential constructive dismissal scenarios actually come to pass and can be salvaged because resignation is quite extreme and not everyone is able to do it. Also, I think these are really difficult claims to establish in the tribunal for the claimant because they bear the burden of proof, they have to demonstrate that there was indeed a fundamental breach, not just something that upset them, it has to be much more than that, it has to be an actual fundamental breach of their contract and the onus is on them to demonstrate it which can be quite difficult, plus they have to act quickly and resign soon after that otherwise they risk being accused of waiving the breach.”

That case is called Flatman v Essex County Council and is a decision of the Employment Appeal Tribunal. If you’d like to read the judgment for yourself you can – we’ve put a link to it in the transcript of this programme. 

LINKS
- Link to case report:  Flatman v Essex County Council (EAT)