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Failure to Provide a Safe Working Environment Breached Employment Contract

on Friday, 14 May 2021.

The EAT has confirmed in the case of Flatman v Essex County Council that a tribunal had erred by failing to consider whether a fundamental breach of contract by an employer had occurred prior to the point of an employee's resignation.

It also confirmed that once a fundamental breach has been committed by an employer it cannot be cured.


Ms Flatman worked in the Council's school as a Learning Support Assistant. She was required to give support to a disabled pupil, which involved daily weight-bearing and lifting work. Despite repeatedly requesting over a period of months to be provided with manual handling training, and being provided with reassurances that this would be arranged, she was not provided with the appropriate training. She subsequently developed back pain and was signed off work. In communications with the school she was informed that on her return to work:

  • she would not be required to lift the pupil concerned
  • she would be assigned to another class
  • training would be provided.

Ms Flatman resigned and claimed constructive unfair dismissal.

In order to succeed in a constructive unfair dismissal claim, Ms Flatman would have to prove that:

  • the Council committed a fundamental breach of a term of her contract of employment (in this case the implied duty to provide a safe working environment)
  • she resigned in response to that breach
  • she had not waived the right to action the breach by delaying too long before resigning.

Flatman v Essex County Council

The Employment Tribunal found that the Council was not in fundamental breach of its implied duty to take reasonable care for Ms Flatman's health and safety. In particular, it found that the Council took steps to ensure that she would not be exposed to danger once she returned to work following her period of sick leave. The Tribunal dismissed her claim and Ms Flatman appealed.

The Employment Appeal Tribunal found that the Employment Tribunal had erred by looking at the overall picture as at the date of resignation and had failed to consider whether the breach had become fundamental at an earlier stage. Taking account of the fact that Ms Flatman had been required to carry out the duties in question without receiving proper training over a period of months, the EAT found that the breach would have been fundamental at the very latest by the time she was signed off work. Actions taken by the Council after this point, such as confirming that she would no longer be required to lift the pupil, would be moved to a different class and provided with manual handling training, could not cure the fundamental breach of contract that had already taken place.

The EAT also found that there was no affirmation of the breach of contract. Ms Flatman persistently and repeatedly complained that she was not receiving adequate training and not resigning sooner did not infer affirmation as the Council gave her repeated assurances that training would be provided. The EAT therefore held that Ms Flatman was constructively dismissed and that her claim for unfair dismissal succeeded.

What This Means for Employers

The case is a helpful reminder that an obligation to provide a safe working environment is implied as a contractual term into all employment contracts. Employers must ensure that, so far as is reasonably practicable, the health, safety and welfare of employees are protected. This includes providing a safe place of work, adequate equipment, and training so that employees can carry out their duties in a safe way.

Employees should always be provided with sufficient training to enable them to perform their roles safely. Any correspondence from employees highlighting potential breaches of the requirement to provide a safe working environment, or training needed to achieve a safe environment, should also be addressed without delay.

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If you would like to find out more in relation to the health and safety requirements of employers, please contact Nick Murrell in our Employment Law team on 07500 009162, or please complete the form below. 

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