In this week's issue:

Too little, too late - employer could not cure fundamental breach
The feeling's not mutual - worker does not need irreducible minimum of obligation

Too little, too late - employer could not cure fundamental breach

If an employer commits a repudiatory breach of contract, an employee is entitled to accept the breach by resigning. They can then claim unfair constructive dismissal. As the EAT decision in Flatman v Essex County Council illustrates, once a repudiatory breach has occurred, an employer’s conduct after the breach but before a resignation will not help it defend an employee’s claim.

Ms Flatman worked as a Learning Support Assistant for a student with a disability. Although she had to help the child move between different specialist equipment, the employer did not provide any manual handling training, even though she asked for training several times over a period of months. She developed and was ultimately signed off work with back pain. It was only when she returned to work that the school took active steps to address her situation. The head teacher told her that her manual handling duties would be removed, she would be moved to a different class to help achieve this and all staff would be given manual handling training within a matter of weeks. Despite this, Ms Flatman resigned and claimed constructive dismissal.

The employment tribunal dismissed her claim because the school’s actions when Ms Flatman returned to work demonstrated a concern for her health and safety and that the school was taking her complaints seriously. The earlier failure to provide training was not a fundamental breach of contract in light of that concern.

The EAT allowed Ms Flatman’s appeal. The essence of the claim was that her employer had breached the implied duty to take reasonable care of an employee’s health and safety by failing to provide training. Once there has been a breach, an employer’s subsequent actions to make amends cannot cure it. An employee retains their right to right to resign and claim constructive dismissal as long as they have not affirmed the breach by waiting too long to resign.

In this case, the failure to provide training was a fundamental breach of contract because it continued over a period of months, despite Ms Flatman’s repeated requests for training. This resulted in an increased and continuing risk to her health and eventually to actual harm. The school’s subsequent attempt to retrieve the situation when Ms Flatman returned to work did not alter the position. She had not affirmed the breach by the time she resigned and her unfair dismissal claim succeeded.

The feeling's not mutual - worker does not need irreducible minimum of obligation

Earlier cases indicate that mutuality of obligation is a pre-requisite to the existence of a worker relationship. However, the fact that the phrase “mutuality of obligation” is used in two separate senses has caused confusion and uncertainty. Mutuality of obligation can mean either:

  • The exchange of promises or consideration of a kind necessary to create some kind of contractual relationship; or

  • An obligation on the putative employer to offer and on the putative employee to accept some work in return for pay, which is sometimes referred to as an irreducible minimum of obligation.

The EAT decision in Nursing and Midwifery Council v Somerville confirms that only mutuality of obligation in the first, wider sense is needed for a worker relationship to exist.

Mr Somerville was one of a number of individuals who could be asked to sit on the Nursing and Midwifery Council’s (NMC) Fitness to Practice Committee. He later claimed that he was either an employee or worker of the NMC. An employment tribunal found that although there was an overarching contractual relationship between the parties, there was no mutuality of obligation because Mr Somerville was not obliged to sit for any minimum number of days and was free to withdraw from dates he had accepted. However, if he did accept a date and had not withdrawn from it, he was obliged to sit on the panel himself and was not entitled to send a substitute. Although the absence of mutuality meant he was not an employee, he was the NMC’s worker because he was obliged to perform services personally and the NMC was not his client or customer.

The NMC appealed, arguing that mutuality of obligation was a pre-requisite of worker status. The EAT rejected that argument. Earlier cases indicating that mutuality of obligation was a necessary element in a worker contract were referring to mutuality in the wide, not the narrow “irreducible minimum” sense. Worker status simply requires a contractual obligation to perform work or services personally. The overarching contractual framework in this case satisfied that requirement, even though Mr Somerville did not have to sit on the panel for a minimum number of days each year. On the facts the tribunal was entitled to conclude that the NMC was not Mr Somerville’s client or customer so worker status was established.

Authored by Jo Broadbent, Stefan Martin and Ed Bowyer

Languages English
Topics Employment
Countries United Kingdom


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