Employment law in education | 5 important updates for schools

Written by Jane Hallas on 18 May 2021

During our recent Education Breakfast Briefing, we recapped some of the recent employment law developments that stand to impact schools – from contractual updates to the risks of suspension. This blog summarises five key updates discussed during the session and the relevant case law school leaders need to know about.

1. Updating terms and conditions of employment

You may be aware of the Taylor Review, which aimed to consider how employment practices can be brought up to date for the 21st century. One change that is of immediate relevance to schools concerns Section 1 statements – the minimum information that an employer must give to an employee in relation to their working terms and conditions.

Employers now need to give much more precise information in respect to an employee’s hours of work, how their pay is calculated, the benefits they are entitled to (including maternity pay and other family-related leave) and details of any training they will receive. Additionally, you must now issue a written statement of employment particulars no later than day one of employment, as opposed to within two months of an employee’s start date.

Fortunately, most schools will send out contracts very early on, normally alongside the offer letter. However, note that workers (as well as employees) are now also entitled to a statement of terms. You will need to ensure though that they are different from employment terms to avoid inadvertently giving employee status to workers.

We recommend reviewing your current contracts for new and existing staff to ensure they comply with these more detailed requirements. Going forward, if you are changing existing employees’ terms and conditions, the change will need to be notified in writing within one month.

If you’re not confident taking on this task yourself, our sector specialists from our Employment Law Team can review and update your contracts for you.

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2. The risks around unfair dismissal

As you may already be aware, dismissing an employee who has at least two years’ continuous employment with you – including those who have been TUPE’d over – will be deemed unfair unless you can show that:

  • The reason (or primary reason) for the dismissal was potentially fair, i.e. related to either conduct, capability, redundancy, illegality or ‘some other substantial reason’; and
  • Taking into account your size and resources, you acted reasonably in treating that reason as a sufficient reason for dismissal.

Under the Human Rights Act 1998, UK courts are required, as far as possible, to interpret domestic legislation in a way that is compatible with the European Convention of Human Rights (ECHR), and it is unlawful for public authorities to act in a way that is incompatible with the ECHR. Schools will fall under this description, unless you are an independent.

The courts have ruled that this test in human rights includes the “range of reasonable responses” test in unfair dismissal law and therefore Article 8, which gives employees the right to privacy and family life, is relevant when looking at dismissing somebody.

In a recent case, a probation officer was issued a final written warning, and later dismissed, for failing to keep her employer updated in regard to issues affecting her daughter. The employer thought they had a fair reason to dismiss, as they felt this impacted on her ability to work. On appeal, the court said Article 8 was engaged; the employer had to have regard for the employee’s right to privacy and family life. However, in this case, it was deemed to be a lawful infringement of that right and, as such, the employer was found to be justified in its decision to dismiss.

Accordingly, it’s important that schools spell out within their policies and procedures what sort of behaviour they expect from employees. If you don’t already do so, it’s a good idea to cross reference your Code of Conduct and all other relevant policies to the Teaching Standards and safeguarding policies as appropriate. Employees need to be aware that what happens in their private life may well have some relevance to their employment, so be clear about those boundaries and the implications if they are crossed.

3. Health and safety detriments

Section 44 of the Employment Rights Act 1996 protects employees against health and safety detriments, making it unlawful to discipline or dismiss an employee, or withhold their pay, if the reason or primary reason for doing so is that they raised concerns about workplace safety.

This protection only applies to employees. However, due to a court finding that this breaches the EU Health and Safety Framework Directive, the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 is due to come into force on 31 May 2021, formally extending the same protection to workers in certain health and safety cases.

As such, if your school engages workers – including peripatetic workers, people who come in for odd sessions, exam invigilators, etc. – it’s very important that you remember these individuals, follow the guidance in respect to everyone, and deal with any concerns in the same way as you would an employee. Otherwise, you may leave the door open to detriment claims for health and safety or whistleblowing claims.

4. Disability discrimination

Due to the very wide reaching definition of disability, it’s important to be aware of the law, as disability-related issues can be tricky to deal with.

Section 15 of the Equality Act 2010 says that discrimination arising from disability occurs where both:

  • A treats B unfavourably because of something arising in consequence of B’s disability; and
  • A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

For example, say you have an employee whose condition means they cannot work as effectively as their colleagues, such as dyslexia, chronic fatigue syndrome or another long-term physical impairment or a mental health condition. If you dismiss them because of their performance which is impacted by their condition, this could give grounds for a Section 15 claim, unless it can be objectively justified.

Another example – and one which is particularly relevant to schools – would be dismissing a teacher due to their sickness absence record, where their absences are a result of a disability, such as longstanding depression and anxiety. The school’s decision to dismiss the employee may not be because of their anxiety and depression but because of their sickness absence record; however, it is nonetheless discriminatory as they have been treated unfavourably because of something arising in consequence of their disability. This is assuming, of course, that the employee’s condition is substantial enough to amount to a disability.

In order to defend a claim for disability discrimination in this scenario, the school would need to identify a legitimate aim and demonstrate that dismissal was a proportionate means of achieving that aim.

Protection of scare public funds and the impact of absence on other employees have been found to be examples of legitimate aims; however, case law has also emphasised that even if legitimate aims are recognised, the Tribunal must balance the needs of the employer against the discriminatory effect of the measure on the employee.

Therefore, to strengthen your position, always ask, ‘what is my legitimate aim?’ and ‘what am I trying to achieve?’ before considering dismissing an employee for long-term sickness absence. What’s more, if there is another, less discriminatory way that you can achieve that aim, you would be expected to do so instead.

5. Justifying suspension

When is suspension justified? This is always a pertinent question for schools when faced with a safeguarding allegation against a member of staff or other gross misconduct issues.

It is important to remember that suspension is never a neutral act. For a teacher, it can have far reaching repercussions and so should always be approached with caution. It is important that in any safeguarding case, LADO is informed before any action is taken against the employee and the requirements of Keeping Children Safe in Education are considered. 

An allegation of potential gross misconduct may warrant the suspension of an individual where there could be concerns that evidence may be tampered with or witnesses may be intimidated or coached, leading you to decide that having the person on the premises could compromise your ability to carry out out a thorough and fair investigation. Moreover, you may believe that the alleged misconduct may continue if the individual is left in the workplace; this is particularly relevant in respect to safeguarding concerns.

In these circumstances, you may have a justifiable defence for suspension. However, it’s vital that you:

  • Ensure the suspending officer has the authority to suspend beforehand. If headteachers don’t have the delegated authority, it’s important that they seek to obtain that from the chair of governors first to avoid any suggestion of a breach of procedure.
  • Check that you have the contractual right to suspend and follow any contractual procedure.

Crucially, just because an incident has occurred and needs investigation doesn’t not mean that suspension is automatically warranted. Suspension should not be a knee-jerk reaction; you should assess all the options open to you first.

Not doing so could amount to a potential breach of the implied term of mutual trust and confidence, so if suspension isn’t proportionate, or excessively long with no reasonable explanation, the individual could bring a claim for constructive dismissal and breach of contract. What’s more, if they have been treated more harshly than another employee for a similar offence, and they have a protected characteristic, they may have grounds to claim discrimination, too.

Of course, deciding on the appropriacy of suspension where potential safeguarding issues are concerned is particularly difficult, as schools must balance the reasonableness of this course of action with their duty to protect the safety and welfare of the children under their care. We discuss the right response in these circumstances here.

"We really value the service from Ellis Whittam. They understand every detail of employment law and they know how to apply it to the school environment. They are also extremely quick – there are no long delays waiting for someone to get back to you!"

Sudley Infant School

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With new legislation and case law emerging all the time, it can be difficult for busy school leaders to keep pace. Fortunately, Ellis Whittam’s personalised, fixed-fee support makes managing people matters easier.

Our dedicated Education Team are not only experts in employment law but also sector specialists with a genuine understanding of the challenges you face on a daily basis. We assign each of our education clients a small team of named professionals, who will guide you through your employee issues, ensure you don’t fall foul of complicated employment legislation, and give you much-needed peace of mind.

If you are facing an immediate issue or would just like to know more about out Employment Law and HR support, call 0345 226 8393 or request your free consultation using the button below.

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