Hello and welcome to this week’s case of the week. This week we’re looking at constructive dismissal. Particularly, whether an employer can ‘remedy’ a fundamental breach of contract so to extinguish such a claim.
The Claimant was employed as a Learning Support Assistant in one of the Respondent’s schools. One of her duties was giving physical support and assistance to pupils. From September 2017, she was required to give support to a disabled pupil, meaning she had to engage in physical lifting activities. Over a period of months, she repeatedly requested manual handling training, but was not provided with it.
In January 2018, she reported to the Respondent that she was experiencing back pain. At the beginning of May 2018, she was signed off because of it. On 21st May 2018, the Respondent emailed the Claimant to the effect that she would not have to work with the pupil in the future; would be assigned to a different class; and would be provided with the training. The Claimant subsequently resigned and claimed constructive unfair dismissal.
The employment tribunal considered 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 Respondent showed a genuine interest in the Claimant’s health, in the email of the 21st May. Her claim for constructive unfair dismissal therefore failed.
Employment Appeal Tribunal
The EAT disagreed. They considered that the implied term had been breached either a) upon the Respondent’s failure to provide the relevant training, or b) at the time the Claimant was signed off from work because of back pain. They said both these instances were serious enough to amount to a fundamental breach of the implied term, and that after such a breach, the Respondent could not ‘remedy’ the contractual term by subsequent action. In other words, the Respondent could not extinguish a prior breach by its promises of action on 21st May. It followed that her claim for constructive unfair dismissal succeeded, as she had resigned in response to a fundamental breach of contract.
The takeaway point is very simple here. Once a contractual term has been fundamentally breached (and the other party has not ‘affirmed’ it by action, i.e. they have not ‘accepted’ the breach), it cannot be remedied by the party in breach, by subsequent action.