Employment

Teacher’s threat

Allegations made against teachers are every school’s greatest fear. It is essential that they are handled correctly, and that any disciplinary action taken against a teacher complies with employment law, writes Brian Palmer

Statutory disciplinary and grievance procedures were introduced in 2004 to simplify aspects of employment
law and to lessen the burden on tribunals. Unfortunately, the procedures have caused confusion and have provoked
satellite litigation about their compliance.

After the Gibbons review last year, the Government decided to repeal them. This comes into effect under the
Employment Act 2008 from 6 April 2009. The procedures are being replaced by a revised ACAS code, which is
currently awaiting parliamentary approval.

The code essentially reverts to the pre-2004 position. However, there is one significant difference, which is that
an unreasonable failure to comply with the code (by either employer or employee) will entitle tribunals to adjust any
award by up to 25 per cent. However, there is no guidance on what amounts to an “unreasonable” failure. ACAS is
also producing non-statutory detailed guidance.

In the meantime, for all issues arising before April 2009, the statutory procedures continue to apply. A significant proportion of the cases so far have focused on grievances and what constitutes a statutory grievance. This has included a resignation letter, a without-prejudice letter from a solicitor, a flexible working request and an employer’s own note of an employee’s complaint. Therefore, employers should treat any form of complaint as a grievance under the procedures. Otherwise there is the risk that the employer will be found to have failed to comply with the procedure and be liable for an increase in the compensation awarded of 10-50 per cent.

The tribunals have been robust in terms of the percentage uplift that has been awarded. In one case, where there was a complete failure to follow the disciplinary procedure, 50 per cent was awarded on the total amount of compensation, including that relating to discrimination rather than just unfair dismissal.

Child protection
The other looming legislation is the Safeguarding Vulnerable Groups Act 2006, which introduces a centralised vetting system for people working with children and vulnerable adults. The system was due to be implemented in 2007, but has been delayed to 2009. It will operate through a secure online process, which should provide an instant check, rather than a paper-based application like that currently operated by the CRB.

The Independent Safeguarding Authority (ISA) will be responsible for decisions on barring individuals from working with children/vulnerable adults. The ISA will maintain two lists: one relating to children and another relating to vulnerable adults, which bar individuals from carrying out certain activities. Employers who knowingly employ a barred individual or fail to carry out checks will be liable to criminal sanctions. The act provides for a fine or up to five years’ imprisonment. A barred individual will be liable to up to five years’ imprisonment if they seek, offer or engage in activity from which they are barred.

In the meantime, there has been an interesting decision in R v Chief Constable of Thames Valley Police, where the High Court considered the threshold for including approved information on a CRB enhanced disclosure. Under the legislation, the chief constable of any police force can include any information which in his opinion “might be relevant” to the applicant’s suitability. The chief constable included information about allegations of sexual abuse that had not formed the basis of any criminal charge. The High Court found that the decision to disclose these allegations was lawful and the chief constable had not been unreasonable when concluding that they “might be true”. This makes the threshold for disclosure relatively low.

Employers must carefully assess which roles require an enhanced disclosure and should discuss with the applicant any allegations raised within the disclosure. In reality, however, employers working with children/vulnerable adults owe them a duty of care and are unlikely to take any risks with this kind of information. If a chief constable has deemed the information worth including, then it is difficult for an employer to ignore it. For most employers, the duty owed to children/vulnerable adults will outweigh the duty to the job applicant.

Brian Palmer is a partner in Charles Russell’s Employment and Pensions Group. Brian can be contacted on
brian.palmer@charlesrussell.co.uk 

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