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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50160
Experience:  Qualified Solicitor
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HiI am writing this wife.She has worked

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Hi I am writing this for my wife. She has worked for the same school for the last 26 years she works with special needs children but mainly with downs children . The school is mainstream but does have special needs children. The school is now an academy. Previously she was employed by West Sussex County council . Her problem is,  in September 14 she was asked to look after a 4 year old downs child, from day one she had to bend down and either pull him back or pick him up because he was continually just doing his own thing and needed 100% concentration because he would run off at any time. She came home worn out every day  but enjoyed her work. After the Christmas break she returned to work but soon after her back suddenly became very painful and she realised it probably was the constant bending down and picking up the child, she had to take a few days off ( she has an excellent sickness record ). On return to work she requested to see the head and asked not to look after the downs child anymore because she was sure it was the cause of her back problems because she has never had a back problems in the past. The head agreed to give her other duties. Yesterday she met the head and he told her the other person looking after the downs child is leaving and he expected my wife to return to looking after the downs child. When she questioned about her picking him up he told her not to pick him up. She knows it's impossible not to pick him up or pull him back to stop him creating havoc in the classroom. The boy weights roughly 4/5 stone. It's not only the picking up that aggravates her back it's also the constant pulling him back when her back is at an unnatural angle He also said if you do not look after him again there's not another job for you to do..In other words . Take it or leave. My wife is 59, 60 this year. Peter XXXXXXX

Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What are your specific queries about this situation please?
JACUSTOMER-bolw8hi8- :

She does not want to work with the boy. Can they get rid of her when there are other special needs children who need help there.

JACUSTOMER-bolw8hi8- :

Sorry. Also is this an industrial injury?

JACUSTOMER-bolw8hi8- :

Also..she worked with the today for 20 minutes and had to pull him back about 3 times and now her back is aching slightly.

JACUSTOMER-bolw8hi8- :

Sorry I keep sending without finishing. My wife is adamant she does not want to work the boy again and wants to tell them tomorrow but I've asked her to wait for your reply.

Ben Jones :

Hi, sorry I was offline by the time you had replied. If the boy is the likely cause of her injuries or aggravates an existing condition, then the employer will have a duty to try and deal with this.

A good starting point is to look at The Health and Safety at Work Act 1974 and related statutory instruments, which impose a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. This includes a duty to undertake risk assessments and manage activities to reduce the incidence of any injuries, whether known or reasonably foreseeable. In addition, under common law an employer owes a duty of care towards its employees, the breach of which can amount to negligence.

If it is likely that her dealings with this boy are the cause of her injuries, or they aggravate them, the employer will have a duty to try and deal with this and either introduce measures which can remove or reduce this from occurring or completely remove her from the situation. They cannot just go ahead and sack her, especially if there are other jobs which she can do as an alternative. Dismissal should be a last resort, especially after such long service, and the employer would have to explore other options before it gets to that stage.

She may certainly raise this issue with them and remind them of their legal obligations in this matter. She can pursue this further in the following ways:

1. Grievance - this is a formal internal complaint, following which the employer is obliged to investigate the issues and deal with them in an appropriate manner. It should always be the first step in trying to bring the problem to the employer's attention and to try and reach a resolution.

2. Constructive dismissal - this occurs where the employee resigns because they feel they were left with no other option in the circumstances. Further considerations include:

  • It must be shown that the employer had acted in breach of the implied terms to provide a safe system of work or through their actions (or inactions) had broken the mutual trust and confidence

  • The breach relied on must be sufficiently serious to justify instant resignation

  • This claim is only available to those with at least 2 years' continuous service with their employer and must be made within 3 months of resigning.

3. Personal Injury - this is a claim for negligence against the employer. Further considerations include:

  • Some recognised illness/injury must have been suffered.

  • The injury must have been caused directly by the employer's negligence, such as failing to appropriately deal with managing risks in the workplace

  • The illness must have been reasonably foreseeable - for example if the employee experienced one injury, that would have indicated to the employer that there is a problem and that further issues could arise if things were not dealt with appropriately.

  • The time limit to claim is 3 years from the time the injury was suffered.

In the first instance, I would advise going down the grievance route first and only consider pursuing legal action as a last resort if it is evident that the matter cannot be resolved in any other way.

Hope this clarifies your position? If you could please let me know that would be great, thank you

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