Constructive dismissal when there is a fundamental health and safety breach (Flatman v Essex County Council)

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. Provided that the employee does not affirm the contract and waive the breach, it remains open to the employee to accept that breach and claim constructive dismissal. When considering whether there has been a fundamental breach a tribunal must therefore be careful only to take account of relevant conduct of the employer, and its impact, up to the point of the fundamental breach. If a breach of the implied duty to provide a safe work environment is relied upon in such a claim, the tribunal’s focus should be on the harm, or risk of harm, in fact caused, or posed, to the employee’s health and safety by the employer’s actions or inactions. When considering whether a breach of this particular implied term is fundamental, statements of intention or attitude on the part of the employer will generally have less significance than they might if the claim was of breach of the implied duty of trust and confidence but are not wholly irrelevant, according to the EAT.

Flatman v Essex County Council (UKEAT/0097/20/BA)

What are the practical implications of this judgment?

This EAT judgment by HHJ Auerbach follows the Court of Appeal decision in Buckland by holding that, when considering whether there has been a fundamental breach of contract up to, or at, any given point in a story which unfolds and develops over time, a tribunal must be careful only to take account of relevant conduct of the employer, and its impact, up to that given point. HHJ Auerbach describes Buckland as being ‘clear and unqualified on the point’.

Accordingly, parties should note that if the actions of an employer amount to a fundamental breach of contract, nothing that the employer does after that point can cure that breach. Provided that the employee does not affirm the contract and waive the breach, it remains open to the employee to accept that breach and claim constructive dismissal.

In following Buckland and distinguishing the decision in Assamoi, HHJ Auerbach holds that there is a difference between:

• actions that prevent a matter from escalating into a fundamental breach (which affect whether or not there is a fundamental breach in the first place), and
• actions that are trying to cure a fundamental breach which has already taken place (which do not affect whether or not there is a fundamental breach).

Case details

• Court: Employment Appeal Tribunal
• Judge: HHJ Auerbach
• Date of judgment: 29 April 2021

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