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

The assistant, named in her tribunal hearing as Ms S Flatman, had worked at Brightlingsea Primary School since 2006.

Her duties included giving physical support and assistance to pupils.

From September 2017, she was required to give support to a disabled pupil, which involved her in daily lifting work.

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

She began to develop back pain, which she informed Essex County Council of in January 2018. 

That May, Ms Flatman was signed off for three weeks with back pain.

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 weeks.

Ms Flatman subsequently resigned and claimed unfair constructive dismissal.

A tribunal found the respondent was in breach of Manual Handling Operations Regulations 1992.

But it found that the respondent was not in fundamental breach of its implied duty to take reasonable care for the claimant’s health and safety.

An initial tribunal concluded she had not been constructively dismissed, and so dismissed her complaint of unfair dismissal.

Ms Flatman appealed and argued the county council had breached the implied duty to provide a safe work environment, by failing – despite requests – to provide manual handling training over the whole period of many months during which she was required to carry out such tasks.

In a ruling published at the end of April, Judge Auerbach said: “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 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.

“On a correct application of the law to the facts found, the only proper conclusion is the claimant was constructively dismissed.

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

An Essex County Council spokesman, who commented on behalf of Brightlingsea Primary School, said: “ECC is aware of the employment appeal tribunal’s ruling. Prior to this ruling, lessons had already been learned from the case.”