The claimant was employed as a learning support assistant at an infant school from September 2006.  As part of the claimant’s job, she had to assist a pupil using the various bits of equipment which involved lifting the pupil, who had special educational needs.  After a number of months, the claimant outlined that she had not received proper manual handling training and the headmaster of the school outlined that this would be organised.  The claimant was then off on a period of sick leave due to back pain.  On her return, the head teacher stated that the claimant would have to be moved class as staff who were able to help with the individual pupil would have to be moved to that class. The claimant disagreed with this stating that she had built up a rapport with the class.  The head teacher said to the claimant that she wished she had brought the issue up sooner which the claimant saw as direct criticism of how she dealt with the situation.

Despite the promises of training in April 2018, there had been no change or update by 22nd May 2018.  The claimant handed in a resignation letter outlining that she had requested manual handling training on multiple occasions but that nothing had been done and she was continuing to have back problems.  There was no official response from either the school or the head teacher. However, in evidence the head teacher outlined that she was sad to see the claimant resign as her skills would be missed within the school.

The claimant brought a claim for constructive unfair dismissal based upon the legal duty upon the respondent not being met - that being to carry out a risk assessment in terms of the claimant’s tasks as well as providing adequate training.   The Tribunal found that there had indeed been a breach of the obligation to provide manual handling training.   The respondents argued that this breach was not fundamental as it did not go to the heart of the contract.  To bolster this point, they argued that the breach had been mitigated by arranging for training to take place, restricted the claimant’s duties in terms of lifting and had decided to move her to a new class for the forthcoming school year.   It is for this reason that the Tribunal found that the breach was not a fundamental one and therefore did not constitute constructive dismissal.

Practical Lessons

The Tribunal outlined the high threshold that is in place for claimants vis-à-vis a constructive dismissal claim.  The Tribunal outlined that a fundamental breach must be one that goes to the ‘root’ of the contract meaning that some other incidental breach will not suffice for such purposes.  This should be taken into account for those dealing with such claims and a question should be asked that if there was a breach, then how has that breach been mitigated and does it go to the ‘root’ of the contract.  This high bar is likely to protect employers from such claims.
https://www.gov.uk/employment-tribunal-decisions/ms-s-flatman-v-essex-county-council-3202087-2018