Learning support assistant was constructively dismissed in relation to health and safety failings

Lack of manual handling training in lifting disabled pupil was a fundamental breach of contract.

Duty to take reasonable care of employees’ health and safety

Employers have a duty to take reasonable care of the health and safety of their employees, to take reasonable steps to provide a safe workplace and to provide a safe system of work. This duty arises from statutory obligations under the Health and Safety at Work Act 1974 and a number of health and safety regulations, the common law duty of care, and a contractual duty implied into every employment contract.

Constructive dismissal and health and safety failings

Employees can claim constructive dismissal where they resign in response to their employer’s fundamental breach of contract. One of the key questions in such cases will be whether the employer’s act or failure to act is serious enough to be a fundamental breach of contract. Where the employer fails to comply with its health and safety obligations, the tribunal will consider the nature of the breach. Some health and safety failings will be serious enough to be a fundamental breach entitling the employee to resign as a consequence and to bring a constructive dismissal claim.

After a fundamental breach has occurred, employees can sometimes “affirm” the contract by doing something which shows they are putting up with the situation and acting as if the contract still exists. The case law shows that this question will be very fact-specific, but affirmation can happen where an employee fails to complain about the situation and/or delays too long after the breach before resigning.

A recent case in the EAT considered whether employers can do something to “cure” a fundamental breach of contract after it has occurred but before resignation takes place.

Case details: Flatman v Essex County Council

Ms Flatman worked in a maintained school as a Learning Support Assistant. Her role was to give support to a disabled pupil and included daily weight-bearing and lifting of the pupil. Over a period of around 8 months from September 2017, Ms Flatman made repeated requests for manual handling training. Although the school managers assured her that steps would be taken to arrange this, no training was put in place. In December 2017, she developed back pain and reported this to the school.

At the beginning of May 2018, the Claimant was signed off for three weeks with back pain. The head teacher informed Ms Flatman that she would not be required to lift the pupil on her return to work and that she was considering moving Ms Flatman to another class in the next school year. The head also assured her that manual handling training was being organised for her and other staff in the following few weeks. Ms Flatman resigned at the beginning of June 2018 and she brought a claim for constructive unfair dismissal.

An employment tribunal found that the local authority employer was in breach of the Manual Handling Operations Regulations 1992, but that it had not fundamentally breached its duty to provide a safe system of work. This conclusion was based on the fact that, before the resignation, the head teacher had shown a genuine concern for Ms Flatman’s health and safety and taken steps to ensure that she would not be exposed to danger in future. The employment tribunal therefore decided that Ms Flatman was not constructively dismissed.

On appeal, the EAT overturned this decision and held that Ms Flatman had been constructively unfairly dismissed. It made clear that it is not possible for an employer to “cure” a fundamental breach of contract after it has taken place. The tribunal should have considered whether at any point before the resignation the employer had fundamentally breached the contract and should not have taken into account the actions or assurances of the head teacher in May 2018.

According to the EAT, it was clear in this case that the failure over a number of months to put manual handling training in place was a fundamental breach of the duty to provide a safe system of work. In making this decision, the EAT took into account the facts that occupational therapists and physiotherapists visiting the school considered that this training was required, that Ms Flatman had made repeated requests over a number of months, and that she had actually developed back pain, but the training was still not actioned at the school.

The EAT decided that a tribunal could not have properly decided that Ms Flatman had affirmed the contract in this case. It pointed to the fact that she had persistently and repeatedly complained about the lack of training throughout the entire period. It was also relevant that the school had given her assurances which were not fulfilled, and that she had then escalated her complaints. The EAT stated that “this was not a case of an employee who had decided to live with the situation, but of an employee who had, hitherto, soldiered on for a time, because she had hoped that the promised action would occur; but instead the breach was prolonged and exacerbated”.

Comment

Although in this case the head teacher was found to have genuine concern for the employee’s health and safety just prior to her resignation, the employer’s delay in putting in place required manual handling training was a serious breach of the employment contract which entitled the employee to resign.  The plans put in place some 8 months after manual handling duties began came too late: the breach of contract had already taken place and could not be cured.

Employers should of course be mindful of their health and safety obligations and the multiple risks of a failure to take reasonable steps to protect employees. A failure to provide a safe system of work can lead to a number of legal claims, including personal injury and employment tribunal claims. Aside from constructive dismissal claims, employees might seek to bring claims in the employment tribunal for health and safety related detriments (on this issue, please see our recent article Refusing to work because of fears about covid-19 - section 44 of the Employment Rights Act which is available from our website).

Whistleblowing claims can also arise where employees have raised concerns in the public interest about safety in the workplace and then been dismissed or subjected to some disadvantage.  These claims do not require two years’ service and are not subject to a statutory cap on compensation. Health and safety breaches can also trigger reports to regulators, the possibility of criminal prosecution, and serious reputational risk.