Offer of amends cannot cure fundamental breach

The Employment Appeal Tribunal has confirmed that once an employer has committed a fundamental breach of contract, the employee does not have to accept an offer to make amends, but remains entitled to rely on the breach and bring a claim for constructive unfair dismissal.

This principle of employment law has been clear for some years, but it can still be instructive to see an illustration of its practical effect. In this case, Ms Flatman had worked as a learning support assistant. Her duties involved daily lifting of a disabled pupil. She repeatedly requested manual handling training, but was not provided with it. She then developed back pain and was signed off work. While she was off work her employers told her that she would not be required to lift the pupil when she returned to work and that she would be assigned to another class. Training was also promised. However, she resigned and claimed constructive unfair dismissal.

The employment tribunal dismissed Ms Flatman’s claim, saying that the employers were not in fundamental breach of contract at the time she resigned, since they had promised to provide her with the support she needed on her return to work. However, the EAT ruled that the ET had failed to assess whether the employers had already committed a fundamental breach of contract by the point she went off sick. Had it done so, it would have been bound to conclude that such a breach had been committed. It followed that she had been unfairly dismissed, since she was entitled to resign in response to the breach, and was not obliged to accept the offer to make amends.

It follows that the employers' change of heart in this case was not enough to ward off an unfair dismissal claim. However, when compensation comes to be assessed, it would be possible to argue that her failure to agree to return to work under the new working conditions promised should have some impact on the amount of compensation awarded. In that sense, at least, it is never too late to say sorry.

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