01/06/21 Employment Law Update


01/05/20 Employment Law Update

Lessons in Constructive Dismissal

In June we had a notable judgement from the Employment Appeal Tribunal regarding the principles involved in determining a Constructive Dismissal Claim. 

What is Constructive Dismissal?

Under section 95(1)(c) of the Employment Rights Act 1996, a dismissal can be said to occur when the employee terminates the contract by resigning, with or without notice, in circumstances where they are entitled to do so by reason of the employer’s conduct.  This is known as a ‘constructive’ dismissal.  There are three essential requirements for a Constructive Dismissal to be deemed to have occurred:

  1. There must be an actual, or anticipatory, breach of contract by the employer which is serious enough to constitute a fundamental breach, ie, one that goes to the root of the contract such as to justify the employee’s resignation
  2. The employee must resign in response to the breach, rather than for some other reason
  3. The employee must not delay too long in terminating the contract in response to the breach,  otherwise they may be held to have ‘affirmed’ the contract

The judgement in question concerned the first of these requirements, ie, whether there was a breach by the employer in the first place.


The Employee concerned was a Learning Support Assistant at a school, who had on several occasions asked her employer to provide manual handling training to assist her in giving physical support to a disabled pupil.  This was promised, but not provided.  Towards the end of 2017 the employee began to develop back pain of which she informed the employer, and in May 2018 she was absent from work for three weeks as a consequence.  In communications on 21 and 22 May 2018 the employee was advised that on her return she would not be required to lift the pupil concerned and that training was being organised for her and other staff in the coming weeks.  However, no such training had been  provided by the time the employee resigned on 5 June.  She claimed constructive unfair dismissal based on a fundamental breach of the employer’s implied duty to take reasonable care for her health and safety.  

The initial finding of the Employment Tribunal

The ET found that the employee had not been constructively dismissed.  Whilst it determined the employer had been in breach of the Manual Handling Operations Regulations 1992 in failing to provide training, it found that this did not constitute a fundamental breach of the employer’s implied duty to take reasonable care for the employee’s health and safety.  In reaching that conclusion it took account of the communications between the employer and the employee on 21 and 22 May, which it found to have demonstrated that the employer had a genuine concern for the employee’s health and safety, and had taken steps to ensure that she would not in future be exposed to danger.

The finding of the Employment Appeal Tribunal

The EAT found  that a fundamental breach of contract by the employer cannot be ‘undone’ by any further action or conduct of the employer occurring at a point in time thereafter.

Whilst exposing the employee to risk, whether because of lack of training or otherwise, on one occasion or for a short time, might in a given case not cross the line to being a fundamental breach; repeatedly doing so, or doing so over an extended period, might be found to do so….”

The EAT found that the Tribunal had erred in its approach to establishing whether there had been a fundamental breach of contract by the employer by failing to consider and determine whether there was a fundamental breach at any point in time prior to 21 and 22 May.

“…in this case the Tribunal had to consider, and decide, whether at any point during the period from September 2017, a stage was reached whereby the respondent’s conduct up to that point in time amounted to a fundamental breach…. The Tribunal’s wording suggested that it had simply looked at the overall picture as it stood at the date of resignation, including what it described there as the measures that had been put in place at that point..”

The EAT substituted a finding of unfair constructive dismissal, on the basis that it was clear from the facts as established by the Tribunal that 

“… prior to what happened on 21 and 22 May 2018, the point had comfortably been passed by which the respondent was in fundamental breach of contract.  That was also a breach which was not affirmed, and in response to which the claimant resigned”.

This is an important principle for employers to bear in mind, as it makes clear that once a fundamental breach of the employer’s implied duty of trust and confidence has occurred, it cannot be remedied by any subsequent action on the employer’s part, although such action may dissuade the employee from resigning as a consequence.  It is not limited to claims involving breaches of health and safety, but to any constructive dismissal claim, eg, bullying, unfair treatment, etc.  For this reason, whilst it is crucial for employers to have robust grievance procedures in place to deal with allegations of unfair treatment , these cannot substitute for processes and training which prevent such breaches occurring in the first place

Case Reference – Flatman v Essex County Council (UKEAT/0097/20/BA

For further advice on any of the issues referred to above, please contact any of our team on 01942 727200, or email eml@employeemanagement.co.uk