Teaching assistant wins unfair dismissal claim

School offer dates are coming up soon. Picture: DAVE THOMPSON/PA WIRE

The teaching assistant appealed the tribunal's initial decision and won - Credit: PA

A teaching assistant who was never given training to lift a disabled child despite repeatedly asking for it has won her claim for constructive dismissal.

The individual – named in a tribunal hearing order as Ms S Flatman – had worked at Brightlingsea Primary School as a learning support assistant since September 2006.

Her duties at the Essex County Council school included giving physical support and assistance to pupils.

In particular, from September 2017, she was required to give support to a disabled pupil, which meant daily weight-bearing and lifting work.

Over a period of months she repeatedly requested, but was not provided with, manual handling training - despite assurances that steps would be taken to arrange this.

From around Christmas time she began to develop back pain, of which she informed ECC of in January 2018. 

At the beginning of May, Ms Flatman was signed off for three weeks with back pain.

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In communications between May 21 and May 22, the headteacher informed Ms Flatman that upon her return, she would not be required to lift the particular pupil concerned. 

Instead, she would look at moving her to another class in the next school year, and that training was being organised for her and other staff in the following few weeks.

Ms Flatman subsequently resigned and claimed unfair constructive dismissal.

A tribunal found that the council was in breach of Manual Handling Operations Regulations 1992 - but was not in fundamental breach of its implied duty to take reasonable care for Ms Flatman's health and safety.

An initial tribunal dismissed her complaint of unfair dismissal - but Ms Flatman appealed.

In a ruling published at the end of April, Judge Auerbach said: “In summary, the tribunal made a clear finding as to what the reason for the resignation was, and that the breach materially influenced the decision to resign.

“It could only properly have concluded, in light of its findings of fact, that that breach had, over time, grown worse and become a fundamental breach, at the latest by the time the claimant was signed off in early May 2018, and it could only properly have concluded that that breach was not affirmed at any point before the claimant resigned.

“I therefore conclude that, on a correct application of the law to the facts found, the only proper conclusion is that the claimant was constructively dismissed.

“It is accepted that, accordingly, in this case, the claim of unfair dismissal must succeed. I will therefore substitute a finding that the claimant was unfairly dismissed.”

A spokesperson for the county council said: “ECC is aware of the employment appeal tribunal’s ruling.

“Prior to this ruling, lessons had already been learned from the case.”