Can a fundamental breach of contract be repaired?

29th June 2021

Can a fundamental breach of contract be repaired?

Constructive dismissal arises where an employee resigns in response to a fundamental breach of contract and treats themselves as having been dismissed. In order to succeed with a claim, the employee must not do anything which could be construed as affirming the contract.

This could occur, for example, if the employee has delayed too long before resigning. In Buckland v Bournemouth University it was established that an employer cannot cure a fundamental breach of the implied duty of mutual trust and confidence. However, in Assamoi v Spirit Pub Company it was held that an employer can take steps to prevent a situation escalating to the point it amounts to a breach of trust and confidence, for example, by issuing an apology and taking action to correct the previous behaviour.

In Flatman v Essex County Council, the Employment Appeal  Tribunal (EAT) reiterated that a fundamental breach of contract can’t be cured.

The employee was employed as a Learning Support Assistant. Her duties including lifting a disabled child. Over the course of a number of months, she repeatedly requested manual handling training. However, no training was provided. The employee developed back pain resulting in her being signed off work. On her return to work, she was told that she would not have to lift the pupil anymore; she would be assigned to a different class; and she would be provided with manual handling training. The employee resigned and claimed that she had been unfairly constructively dismissed. Her claim was dismissed by the employment tribunal. It said that, as the employer had shown concern for her health and safety at the time at which she resigned, it was not in fundamental breach of the implied duty to take reasonable care of her health and safety.

The EAT disagreed. The tribunal had looked at the position at the time of the employee’s resignation, rather than consider whether a fundamental breach of the implied term had already occurred at some point previously. There had been a fundamental breach because of the increased and continuing risk to the employee’s health and safety and, furthermore, because of the harm caused to her. The contract had not been affirmed. The situation had already got to the point where the breach had become fundamental. The offer of training was too little too late.

This case reaffirms the position that once a fundamental breach of contract has occurred, an employer cannot remedy it. Provided the employee hasn’t affirmed the contract, they remain entitled to act on the breach and claim constructive dismissal notwithstanding any attempts made by the employer to remedy the situation. In this case, the employer should have arranged manual handling training at the outset. That would have prevented the back injury and stopped the breach becoming fundamental. It would also have saved the employer the time, cost and hassle of tribunal proceedings.

If require advice about this or any other area of employment law, contact Marie Allen on 01473 298133 or email


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