Flatman v Essex County Council
Ms Flatman worked as a Learning Support Assistant in a school. From September 2017, her duties included looking after a disabled pupil, which involved lifting the child on a daily and regular basis. She repeatedly requested manual handling training. Despite assurances that steps would be taken to arrange training, it was not provided. From around Dec 2017 onwards, she started developing back problems and she informed the school in January 2018. In May 2018, Ms Flatman was signed off sick for 3 weeks due to her back condition. In response, the Head informed her that on her return she would not be required to carry out any manual handling tasks, that the school would look to move her to another class and training was being organised within a few weeks of her expected return. Despite these assurances, Ms Flatman resigned and claimed unfair constructive dismissal.
Tribunal Decision
Although the tribunal accepted that the employer was in breach of the Manual Handling Regulations 1992, they rejected her claim for constructive dismissal. They ruled that a fundamental breach had not been established and they felt that the communications in May 2018 demonstrated that the school had recognised, accepted, and had shown genuine concern for her problems and were taking steps to address them. Ms Flatman appealed.
EAT Decision
The EAT held that the tribunal was wrong to look purely at facts at the time of the resignation. Instead, they should have looked at whether there had already been a breach at any time since September 2017. They said that the tribunal must consider the conduct of an employer up to the point of the fundamental breach, after which it cannot be rectified. They made the following points;
- When considering whether there has been a fundamental breach, a tribunal must be careful only to look at conduct of the employer, and its impact on the employee, up to the point of the fundamental breach.
- Look at the overall picture of the employer’s actions.
- On the facts of the case, the tribunal should have found that the breach became serious between January-May 2018, when Ms Flatman experienced back problems and went off sick.
- A fundamental breach was established at that stage, and any steps taken thereafter would not have remedied that breach. This meant that assurances given to her about relocating her or assigning other duties would not have helped her. It was too late.
This decision demonstrates the importance of keeping records of the complaints, the timelines and steps taken by the employer, as these will show which/when a breach becomes serious. It also highlights the importance of timely actions. Here, Ms Flatman went off sick in May, and the employers later assurances would not have negated the earlier breach – failure to provide manual handling training, failure to safeguard her safety at work and failure to make changes. (Case Source)
The matter was remitted to the ET for reconsideration.
(Sources: Crossland Solicitors and Gov.uk)
