Breach of health and safety regulations and constructive dismissal

What is constructive dismissal?

The concept of constructive dismissal in UK employment law means, in summary, that an employee resigns because of a fundamental breach of the employment contract by an employer. The employee may then complain of unfair constructive dismissal.

Constructive dismissal and health and safety law

The relationship between constructive dismissal and health and safety law has recently been considered by the Employment Appeal Tribunal (EAT) in the case of Flatman v Essex County Council (2021).

The facts, in summary, were that Ms F was employed by ECC as a learning support assistant. She was assigned to help a disabled student, which involved weight-bearing and lifting work. For several months, Ms F made repeated requests for manual handling training. She was assured that the training would be arranged but none was provided. In January 2018, Ms F reported that she was suffering from back pain. She was not given training despite further assurances. In May 2018, she was signed off sick for three weeks because of back pain.

Ms F’s head teacher told her that when she returned to work she would not have to lift the pupil and that training would be organised. In June 2018, Ms F resigned. She complained to an employment tribunal (ET) of constructive dismissal. The basis of the claim was that ECC had breached health and safety regulations and/or had breached the implied term in her contract of employment that it would provide a safe place of work, by failing to carry out a risk assessment and failing to provide her with appropriate training.

The ET rejected the complaint and made the following points.

• ECC had been in breach of health and safety regulations but it had not been in fundamental breach of its implied duty to take reasonable responsibility for her health and safety.

• There was a clear indication that the school had a genuine concern for Ms F’s health and safety and had taken steps to ensure that she would not be exposed to danger when she returned to work.

• ECC was not guilty of a fundamental breach of contract and Ms F had not been constructively dismissed.

Ms F appealed to the Employment Appeal Tribunal. That allowed the appeal on the following grounds.

• The clear basis of the complaint of fundamental breach of contract was that the employer had failed to provide training despite Ms F’s repeated requests.

• The ET should have considered whether, at any point during that time, instead of at the time of resignation, the conduct of the school amounted to a fundamental breach.

• If the ET had done so, it would have decided that the breach of contract became fundamental at some date between January and May 2018 because of the increased risk of causing harm to Ms F.

• This was not a case where the actions of the employer would have prevented the position from escalating into a fundamental breach.

Previous cases of constructive dismissal with health and safety issues

Another case of constructive dismissal with health and safety issues is Wilton v Cornwall & Isles of Scilly Health Authority (1992). In that case, Ms W left her employment as a night nursing sister after suffering a mental breakdown caused by allegations and complaints made against her at work. She complained of constructive dismissal. The industrial tribunal (as it then was) found that the employer had been in breach of her contract of employment by failing to give her proper support. However, this breach had ceased when the employer offered Ms W a training programme. Ms W had continued in her employment for a further six months and left her employment voluntarily.

Ms W appealed to the Employment Appeal Tribunal. Her appeal was dismissed on the basis that she had affirmed her contract by invoking an agreed grievance procedure. She then appealed further to the Court of Appeal.

That Court dismissed the appeal and ruled that Ms W’s departure had been on her own initiative. There was no constructive dismissal.

Another example is the case of Knight v Barra Shipping (1992). K worked on an oilrig supply vessel. He was required to work on the deck in bad weather. He resigned because the safety barrier on the stern of the vessel was not in position. K argued that the absence of adequate safety precautions had amounted to a fundamental breach of contract and that he had been constructively dismissed. The industrial tribunal ruled that, on the evidence, there had been no fundamental breach of contract and thus no constructive dismissal because working in the North Sea in winter necessarily involved cold and wet conditions. K appealed to the Employment Appeal Tribunal.

The EAT dismissed the appeal. It stated that the industrial tribunal had fully considered all the facts and its decision should not be interfered with. However, there could be constructive dismissal where an employee was required to work in intolerable conditions, for example where a serious danger to life was involved.

In general, employers need to be aware that, although it is generally accepted that it is very difficult for an employee to succeed with a constructive dismissal claim, serious health and safety breaches may result in tribunals finding that there has been a sufficiently fundamental breach of contract resulting in constructive dismissal.