Warners’ inaugural UpdatEd. webinar took place on 7 June 2023. Louise Brenlund, Partner and Head of Employment and guest speaker, Phil Reynolds, CFO at TILT MAT and Director of PLR Advisory Services, looked at hot topics in the education sector for 2023 from an employment law, financial and commercial perspective.
View the full webinar here
Download the slides here
We provide some of the key issues that emerged from the webinar, which those working within the education sector may wish to keep in mind.
Getting recruitment right
All school recruitment and selection should be:
- Efficient: being as cost-effective as possible
- Effective: producing enough suitable candidates in order to make the best decision
- Fair: ensuring that all decisions are made on merit alone
Whilst non-statutory, it is good practice to follow DfE guidance, “Staffing and employment advice for schools” October 2021. The guide aims to provide consistency in information for all schools.
Appointment of staff:
When reviewing your processes, ensure that:
- You have a documented process for selecting the best individual for the post, agreed at the start of the process and that the process incorporates best employment practices and any regulatory requirements. This includes being aware of your responsibilities under Equality Act 2010. You must not discriminate on the basis of any protected characteristic, such as race, sex, age or disability reappointments, pay and conditions.
- Documentation should include clear:
- Job profiles; and
- Selection criteria
- Obtain references – For all staff, references should be obtained from a current or former employer. Ensure that you follow up on anything contradictory or incomplete. For headteachers, and teachers you should ask for details of capability procedures in the previous two years.
- Maintained schools must have at least one interview panel member and should have undertaken appropriate safeguard training in how to take proper account to safeguard and promote the welfare of children when recruiting staff. Whilst Academies do not have to follow this, it is good practice to do so.
- Anyone involved in the recruitment process should be familiar with the most up to date version of KEEPING Children Safe In Education (KCSIE) alongside ‘Working Together to Safeguard Children’.
- KCSIE, dated 1 September 2023, specifically deals with safer recruitment under Part 3, this suggests:
- Only accept a CV with a full application; and
- To consider conducting online searches.
We flagged that when carrying out online searches, this should only be for the purpose of considering the candidate’s suitability to work with children.
Under KCSIE, the governing body must reassure itself all appropriate suitability checks have been undertaken and that the school keeps a single central record (SCR) detailing the range of checks undertaken.
We discussed the recent case of Smith and Anor v Surridge & Ors (2023) EWHC 351, which serves as a useful reminder that KCSIE sets out that only details of substantiated (proven) harm threshold allegations should be included in references. There is a risk that if no findings have been made, any reference referring to such an allegation could be determined as defamatory, as was the case here.
A brief discussion took place around alternatives to attract good staff. Listen to the webinar for further details.
Changing terms and conditions of employment
- Teacher’s terms are usually determined by the School Teachers’ Pay and Conditions Document (“STPCD”) AND Conditions of service negotiated by teaching unions commonly known as the Burgundy Book or, for Kent, the Blue Book.
- Support staff and non-teaching staff by the Green Book and the National Joint Council National Agreement on Pay and Conditions of Service Handbook (“NJC”).
- These terms provide very good sick pay and enhanced maternity pay. They also provide leave for things such as examinations, jury service and other public service, for union representatives and other purposes.
The general rule is you cannot change staff terms and conditions.
Schools have tended to avoid such changes as to do so can be problematic in terms of process and risk of claims. It is also unclear how Unions may react to such changes as this has not yet been challenged.
Ways you may introduce change:
1: Individual consent and agreement to new terms.
2: Relying upon a variation clause in the contract itself, which entitles you to make the proposed changes.
3: Imposing the change and relying on the employee’s conduct to establish implied agreement to the change (in other words, ‘acquiescence’); or
4: Terminating the employee’s employment and offering re-employment on the new terms.
- If following the last option, you will need to bear in mind that if you are proposing to dismiss and re-engage 20 or more staff within a 90 day period, you will be required to follow the legal requirements for a collective consultation process and notify the secretary of state with an HR1 form.
- Recently there has been a lot in the press around this method of imposing new contractual terms, otherwise referred to as “fire and re-hire”. There has been as ongoing consultation on a new ACAS Code of Practice on dismissal and re-engagement, which ended on 18 April 2023. There is no stated timescale for the introduction of the Code. We await news of any changes and when it will be implemented. This is important because if an employer unreasonably fails to follow the Code, an employment tribunal can uplift any award of compensation by up to 25%
- Also, remember that if you recognise teachers’ unions, this is likely to involve collective bargaining with unions. The scope of collective bargaining may vary depending on the mandate of the unions, whether any agreement covers all staff policies or is limited to certain terms and conditions.
Each method has its own risk and issues and we recommend you take legal advice on what you are considering and proposing. We discussed some pros and cons around this and that a key consideration will be what you are trying to achieve and whether this is the best way of doing that.
Flexible working arrangements can present challenges for schools, given the desire for continuity of provision and the need to put pupil’s education first. Schools should keep a watchful eye on developments in this area and review existing flexible working policies if statutory changes are implemented, as indicated below.
The Employment Relations (Flexible Working) Bill is rapidly making its way through Parliament.
- In brief, the current position on flexible working requests is that:
- An employee with 26 weeks or more service can make one flexible working request per year
- The employer is required to deal in a ‘reasonable manner’ and provide a decision within 3 months.
- A request can be refused if an employer demonstrates one of the 8 statutory reasons for doing so.
- If agreed, it will result in a permanent contractual change.
The Bill introduces 4 key changes:
1: Employees are no longer required to explain how they think any effect of their request could be dealt with by their employer
This is likely to make the process less daunting for staff and may increase the number of requests received by schools. It will place responsibility on the school to consider how to mitigate the impact, thus making more work for the employer.
2: Employees can make two requests in any 12 month period
This may mean an increase in the number or requests being made. You will need to consider the time and resources needed to deal with such requests. This will heighten the need for consistency, having a clear process and keeping the process under review
3: Employers need to consult with employees before rejecting a request.
This will mean more dialogue, again, more time, but it may be beneficial as it may help each party to understand each other better and to find solutions. Schools will need to ensure that staff are trained so that conversations are fair and consistent.
4: Employers will be required to approve or reject a flexible working request within 2 months
This means there is not as much time to deal with requests. Schools will need to be on the ball and responsive.
Whilst not part of the bill, the government has also suggested they will introduce this as a day one right by way of Regulations after the Bill is passed. This may make things difficult for employers, as having agreed contractual terms including a working pattern, on day one an employer could face a request for flexible working. However, one would hope such negotiation would be part of the recruitment process.
Importantly this is still only a right to request to work flexibly. Currently, if you do not follow the statutory procedure for flexible working requests, employees may bring a claim of up to 8 weeks’ pay (capped at statutory max £643 as of 6 April 2023). You should also be aware of risks around allegations of discrimination and subsequent claims. If a request is made for a reason connected with a protected characteristic, it could lead to issues, for example, if the request is made for childcare reasons, there may be a claim for indirect sex discrimination.
Other proposed employment law changes:
Although we do not have definitive implementation dates for the proposed legislative changes, which may be subject to change, it is clear from the number and range of Private Members’ Bills, especially those with government support, that far-reaching changes to employment law are likely to be on the horizon.
Three government backed Private members’ bills affecting parents and unpaid carers received Royal Assent on 24 May 2023 and have now become the Neonatal Care (Leave and Pay) Act 2023, Carer’s Leave Act 2023, an Protection from Redundancy (Pregnancy and Family Leave) Act 2023.
What increased protection is there for employees?
1: Eligible parents whose newborn baby is admitted to neonatal care can take up to 12 weeks paid leave in addition to other entitlements.
2: The extension of existing redundancy protections while on maternity, adoption or shared parental leave to also cover pregnancy and a period of time after a new parent has returned to work.
3: A new entitlement to one week of flexible unpaid leave per year for employees who are caring for a dependent with a long term care need.
The first is expected to come into force from April 2025, the second not before April 2024 and the last at the end of the period of two months beginning with the day the Act was passed. Further legislation is required to implement the new entitlements.
Following the recent announcement that the ‘sunset clause’ in the Retained EU Law Bill will be scrapped, meaning that the retained EU law will not be automatically revoked at the end of 2023, and a more measured approach to post-Brexit employment law reform will be taken. Rather than a heavy impact on workers’ rights, the approach is being described as “tidying up of the statute book”. It remains to be seen exactly what approach will be taken.
The government has now launched a consultation on reforming the calculation of annual leave and holiday pay, record-keeping requirements under the WTR 1998 and consultation requirements under TUPE. The consultation will remain open until 7 July 2023. If these matters are important to you and your school, make sure that you have your say.
In due course, schools will need to prepare for the changes by reviewing and updating their existing staff policies and procedures – for example, in relation to flexible working – and implementing new ones, where required, for example, in relation to carer’s leave and neonatal leave and pay.
For further guidance on the issues covered in this article, book a free 30 minute consultation with Louise Brenlund on 01732 362452, [email protected]
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