Employment
Supporting roles
Following on from his article in the previous edition, Caspar Glyn QC concludes his overview of the implications of employee disability and risk: an essential guide for senior personnel who manage other staff
When dealing with employees who are disabled, it is vital to mitigate levels of risk. Together with the first article in the previous edition of FIS, you should have here a simple guide for those who manage other staff to identify and then engage with those who are disabled to avoid the large costs of claims.
First aids
Disability discrimination can catch schools out unawares, not least when a disability hasn't been disclosed. In the first of a two-part series, Caspar Glyn provides this guide for senior leadership members who manage staff
Disability discrimination cases pose the greatest risk to employers because:
- a dismissed disabled person has much less chance of finding alternative employment than a non-disabled person, so the awards that tribunals make can be very high, consisting of part- or whole-career earnings;
- the provisions in the Equality Act extend the definition of disability to a larger group of people than many members of the general public would understand;
- it is possible to discriminate against someone without knowing that they are disabled; and
- uniquely, in discrimination, the law requires the employer to take positive action, (positive discrimination, as some would have it), to help disabled people retain their jobs if they know or ought to have known about the disability.
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Still here, Mr Chips?
A default retirement age for an employer is the age at which employees are compulsorily retired; it is a blanket age that covers all. But Caspar Glyn shows how tricky the law can be when trying to clarify this issue
The UK abolished the State Default Retirement age of 65 years before they lost a case in Europe. For many employers, it remains at 65 under their terms and conditions, but it can vary in different establishments depending on the job etc. A Supreme Court judgement earlier this year in Seldon vs Clarkson Wright & Jakes was, in many quarters, erroneously reported as giving a green light to employers that continue to impose a default retirement age.
Measures of success
The challenge for the next decade is to retain and develop your staff, but there are alternative ways of doing so. Not everyone is suited to management, so why not reward them to stay in the classroom? Edward Wild reports
At a conference organised by the Centre for Market Reform of Education earlier this year, head Kevin Sartain gave a fascinating address in which he set out how he had transformed the fortunes of Beech House School in Rochdale during the past decade. One element of the change process was a radical approach to pay for teaching staff (see article p34). In what many teachers – and more probably unions – would regard as an unacceptable policy, the salaries of all teachers were set at the same level, which changed up or down according to pupil numbers. In practice, this means that the salary will increase from £21,587 if there are 210 pupils in the school to £27,103, if the number reaches 270.
A matter of succession
The removal of an employer’s ability to retire employees compulsorily at the age of 65 has forced employers to consider changes to how they manage their workforce. Lynne Adams explores the issues employers must consider
Since the abolition of the default retirement age on 6 April 2011, it is no longer lawful to dismiss an older worker on the ground of retirement unless it can be objectively justified (ie that the retirement age chosen is a proportionate means of achieving a legitimate aim). Employers are having to decide whether they retain a justified retirement age or operate without a fixed retirement age altogether. Given the inherent risk of potential claims for age discrimination and unfair dismissal involved in retention of a fixed retirement age, most employers are looking at alternative options to compulsory retirement.
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London Borough of Brent v Fuller
This case considers whether an employer dismissing for misconduct can take into account a previous incident of misconduct which did not result in formal disciplinary action. By Nick Hobden and Ben Stepney
Mrs Fuller was an administrator at a school for children with social and emotional difficulties. Her role did not involve contact with pupils. In May 2007 there was an incident involving the restraint of a pupil. This lady intervened. The head told her that she should not interfere with the discipline and restraint of pupils.
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Equal helpings
Elements of the Equality Act continue to serve up examples of how a school should adapt its approach to employment issues. Caspar Glyn flags up an important legal distinction and reviews a recent equality case employment
It has long been the case that any agreement that settles a discrimination claim has to observe certain formalities. First among these is the requirement that the employee who is settling their claim receives independent advice from a lawyer, usually a solicitor or other qualified person, most commonly a trade union officer. The Equality Act has introduced an uncertainty into the identity of this lawyer.
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Fit for the job
Disability claims can run into hundreds of thousands of pounds and can ruin a school’s reputation as a good employer. Caspar Glyn examines changes in the legislation and advises how to be compliant and fair
Schools need to be aware of changes in disability legislation to avoid allowing claims arising. Thirty years ago, women of a certain age were regularly asked whether they intended to have a family, before the age discrimination regulations, while applicants in their 50s were asked about their retirement plans. The intent of the legislation is to directly affect questions about health in the same way.
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Staff at the heart
The lesson from history of independent schools and tough financial times shows that difficulties for schools begin in earnest two years after the onset of a recession. Simon Bevan sets out a strategy to manage one cost centre
The schools that demonstrate strong leadership and can effectively manage their costs are the ones that are most likely to sail out of the other side of the storm. Key to managing costs in line with fee income is an audit of staffing structures, staff numbers and terms and conditions.
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All things being equal
The Equality Act 2010, most of which came into force on 1 October 2010, introduces a raft of new changes to employment legislation. Caspar Glyn identifies ten that all independent schools should monitor closely
Out go the old Acts and Regulations with their “isms” and in come the new “protected characteristics” spanning race, sex, gender and marital status, disability, religion, sexual orientation and age.
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Law report: unlawful deduction of wages claim, Ashford Employment Tribunal
Here is a report of a recent employment tribunal, by Hywel Griffiths and Georgina Cowens
The claimant, a part-time French teacher at the respondent school, brought a claim that the respondent had made an unlawful deduction of her wages by failing to pay her correctly when her working hours increased.
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Know your limits
Ask any Association of Teachers and Lecturers (ATL) member working in the independent sector what their biggest current concern is and they will invariably reply “workload”. John Richardson reports
The Working Time Regulations came into force in 1998 to provide statutory regulation of working hours in the UK. The regulations cover England, Scotland and Wales, while similar regulations apply in Northern Ireland. The ATL survey of pay and conditions in October 2009 revealed that, during term time, 64 per cent of teachers work more than the maximum 48 hours per week recommended by the EU.
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On the go
Financial pressures might mean that some independent schools are making job cuts to balance the books. John Richardson suggests, however, that there may be ways for schools to avoid compulsory redundancies
As the largest trade union and professional association in the independent sector (with 20,000 teaching and support staff members), the Association of Teachers and Lecturers (ATL) is seeing the impact of the recession at first hand. We have members in approximately 1,700 independent schools – a greater coverage than, say, the ISC.
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Acts of god
Religion in schools is significant in two ways: where the school itself has a religious character and the religion or belief of the staff. Brian Palmer reviews the governing regulations and assesses some recent tribunal decisions
Non-teaching staff at independent schools with a religious character and teaching and non-teaching staff at secular independent schools will be subject to legislation, which prohibits discrimination in the workplace on the grounds of a person’s religion or belief. There are special rules for independent schools with a religious character that are beyond the scope of this article.
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People watching
Joanna Green expands on the implications of the Safeguarding Vulnerable Groups Act 2006 and the Independent Safeguarding Authority’s vetting and barring scheme
The Safeguarding Vulnerable Groups Act 2006 creates a new vetting and barring scheme which is now in force. The intention is to consolidate all known information on the fitness of any individual to work in any role that involves contact with children and vulnerable adults and to make the result of that information easily accessible to employers who are hoping to recruit to such roles. At its core, the new scheme brings existing information under POCA, POVA and List 99 under a single administration.
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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.
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A job’s worth
Recent cases have clarified some of the issues affecting part-time workers and employment status in general within education, with ramifications for the independent schools sector, writes Katy Wedderburn
By law, part-time workers must be treated in the same way as comparable full-time workers. A comparable full-time worker is one who works for the same employer and does similar work under the same type of contract. Part-time workers have the same rights and benefits – in proportion to the hours they work – as comparable full-time staff, unless the difference can be justified on objective grounds.
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Work to rules
The Government is addressing equality in the workplace: flexible working and the Equalities Bill; changes to sex discrimination legislation and to maternity regulations. Brian Palmer assesses the impact on schools
The highly publicised review into flexible working has resulted in a recommendation that the current statutory framework is extended to parents of children up to the age of 16. The Government is now consulting on how to implement this recommendation. Flexible working can take many forms, including part-time working or job-share.
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