In the case of Flatman v Essex County Council Ms Flatman was employed as a learning support assistant. From September 2017, she was required to give support to a disabled pupil, meaning she had to engage in physical lifting activities. Over a period of months, she repeatedly requested manual handling training, but was not provided with it.
In January 2018, she reported that she had started to experience back pain. This got gradually worse and by the beginning of May 2018, she was signed off sick because of it. On 21 May 2018, the head teacher contacted Flatman to advise her that she would not have to work with the pupil in the future; that steps would be taken to assign her to a different class and that arrangements would be made to provide her with the training in the following few weeks.
Despite these reassurances Flatman subsequently resigned. She later presented a claim for constructive unfair dismissal on the grounds that the employer was in fundamental breach of contract in failing to take appropriate steps to protect her health and safety at work.
The ET found that the council was in breach of its obligation to provide manual handling training but, in view of mitigating actions taken shortly before Flatman resigned, it determined that the breach was not a fundamental breach and it dismissed her claim of unfair dismissal. Flatman appealed on grounds including that the ET failed to determine whether the breach of contract, which it had identified, was a fundamental breach at any time before its effects had been ‘mitigated’.
The EAT held that the ET erred because it failed to consider and determine whether there was a fundamental breach at any point in time prior to the mitigating actions of the council.
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