The Claimant worked in the Respondent’s school as a Learning Support Assistant. Her duties included giving physical support and assistance to pupils. In particular, from September 2017, she was required to give support to a disabled pupil, which involved her in 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 also began to develop back pain, of which she began to inform the Respondent in January 2018. At the beginning of May the Claimant was signed off for three weeks with back pain. In communications on 21 and 22 May, the head teacher informed the Claimant that she would, upon her return, not be required to lift the particular pupil concerned, that she would be looking at moving the Claimant to another class in the next school year, and that training was being organised for her and other staff in the following few weeks.
The Claimant subsequently resigned and claimed unfair constructive dismissal.
The Tribunal found that the Respondent was in breach of the 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. In so concluding, the Tribunal took account of the communications between the Claimant and the head teacher on 21 and 22 May 2018, which, it found, demonstrated that the Respondent had genuine concern for the Claimant’s health and safety, and had taken steps to ensure that she would not in future be exposed to danger. The Tribunal concluded that the Claimant was not constructively dismissed, and so dismissed her complaint of unfair dismissal.
The Claimant appealed.
Held: the complaint was that the Respondent 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 the Claimant was required to carry out such tasks, and repeatedly requested it. It was accepted that, in order fairly to adjudicate that complaint, the Tribunal needed to consider whether the breach was, or became, fundamental at any point during the course of the period from September 2017 onwards. In considering that, the Tribunal could properly take account of the overall picture, including such actions as the Respondent had taken, short of actually providing the training, up to any given point. But, if the breach had become fundamental by a certain point, actions taken by the Respondent later in point of time could not make any difference to that: Bournemouth University v Buckland [2010] ICR 908.
The Tribunal had erred by only looking at the overall picture at the point of resignation, including taking account of the communications of 21 and 22 May 2018. It had failed to consider, and determine, whether the point of fundamental breach had been reached at some earlier stage of the unfolding events, consideration of which could not have included those later communications. The appeal was allowed. This was a case where, on the facts found, and taking the proper approach in law, the Tribunal would be bound to have found that the breach became so serious as to be fundamental, at some point between January 2018, when the Claimant first reported back trouble, and the start of May, when she went off sick with back trouble, at the very latest; and that such breach had not been affirmed. As it was also not disputed in this case that, if the Claimant was constructively dismissed, she was also unfairly dismissed, a finding of unfair dismissal would be substituted.
[2021] UKEAT 0097 – 20 – 1201
Bailii
England and Wales
Updated: 28 June 2021; Ref: scu.663120