New Academic year 2020-2021 

Changes to Support Staff Pay Scales and Holiday

The support staff NJC pay rates and allowances have been increased by 2.75% on all NJC pay points 1 and above and are to be backdated from 1 April 2020. In addition, with effect from 1 April 2020, an increase of one day to the minimum annual leave entitlement has been awarded. This increase would apply just to those employees whose leave entitlement at 1 April 2020 is twenty-one days (plus the 2 extra statutory days and 8 bank and public holidays)

Therefore, from 1 April 2020, the minimum annual leave entitlement for support staff where the school follows the Green Book will increase as follows:

• Increase from 21 days to 22 for support staff with less than 5 years’ service; and
• A further 3 days after 5 years’ continuous service (so staff will still have 25 days plus the 2 statutory days plus 8 bank and public holidays).

The entitlement as expressed applies to five day working patterns. If this impacts on your staff, you should take steps to ensure these entitlements are implemented ASAP and any relevant pay policy or annual leave policy updated.

STPCD Teachers Pay Notification

With teacher appraisals fast approaching, this is just a reminder that if you are a community school or follow the School Teachers Pay and Conditions Document (STPCD), when a teacher’s pay is determined (whether due to a performance review or changes for any other reason under the STPCD) you are required at the earliest opportunity, and in any event not later than one month after the determination, notify the teacher in writing of that decision. The notification must include:

1. The decision;
2. Any recruitment or retention payments or other financial benefits;
3. Any safeguarded sums to which the teacher is entitled;
4. Where a copy of the school’s staffing structure and pay policy may be inspected.
5. In addition, where a teacher is a member of the leadership group or paid on the pay range for leading practitioners, or it has been determined an unqualified teacher or classroom teacher should be paid as a qualified teacher, or it concerns an unqualified teacher, additional information must be provided as contained in the STPCD (at the time of writing we await the 2020 version to be published).

If you subscribe to our HR Admin Service, please do contact that team and they will be happy to prepare these statements for you.

Teacher Unfairly Dismissed for Possessing Indecent Images of Children

The facts
A teacher was charged with possessing a computer containing indecent images of children. It was a shared computer found at his home by the police. However, when the police couldn’t establish who had downloaded the images, it was decided not to proceed with a prosecution of the teacher but it reserved the right to do so in the future. The teacher was suspended by his employer whilst an investigation was carried out. The investigation report referred to the following concerns:

1. The teachers involvement in the police charges of possessing a computer with indecent child images;
2. If this became publicly known, it could bring the employer into disrepute;
3. The position of trust the teacher holds in his profession.

A disciplinary hearing was convened and the invite letter referred to the allegation that the teacher was “involved in a police investigation into illegal material of indecent child images on a computer found within your home and the relevance of this to your employment as a teacher. “ No specific reference was made to the potential reputational damage of the employer as being an allegation the teacher was facing or a ground for potential dismissal. The employer dismissed the teacher on the following grounds:

1. It was possible the teacher may have been responsible for the images found on the computer (even though the employer said there was insufficient evidence to conclude the teacher had downloaded the images);
2. The risk of reputational damage from continued employment if he was prosecuted in the future and;
3. An irretrievable breakdown in trust and confidence.

The teacher brought a claim for unfair dismissal but the original tribunal found this was a fair dismissal. The teacher appealed on the basis that he was not told that the risk of reputational damage was an allegation he was facing and that the employer couldn’t dismiss him based on the possibility he had downloaded the images.

What did the Employment Appeal Tribunal (EAT) decide?
The EAT decided that the dismissal was in fact unfair on the basis that the employee was not given notice of the full grounds on which a dismissal may be sought. The teacher was not given notice that reputational damage may be a potential ground for dismissal in this case. It was not sufficient for this to be mentioned in the investigation report. It is a separate potential ground for dismissal, and as such must be mentioned as such to allow the teacher the opportunity to to fully prepare for this ahead of the hearing.

Further, it was also decided that it was not reasonable to dismiss on the basis that the teacher “may have” downloaded the images nor that there could be reputational risk “if” he were prosecuted in the future. The EAT said that the employer can only assess the risks on evidence they currently have, not of unknown risks (which included a future conviction). This meant that the employer should have decided whether the misconduct was established and in this case, it was not able to establish this, it was a mere “possibility”. Decisions had to be made on the balance of probabilities on the evidence they had and not “guess” work.

What does this mean for schools?
This decision highlights the importance of taking care and being absolutely clear about the allegations being put to the employee and the disciplinary panel’s remit when hearing the case. It is a principle of natural justice that an employee knows the charges against him when facing a disciplinary hearing to enable him/her to prepare his/her case. It also reminds us that decisions must be taken on the “balance of probabilities” based on the evidence available and not on what might happen in the future.

We are here to help
We can help advise in all levels of disciplinary cases. In complex or contentious cases, particularly where safeguarding matters are concerned, we would strongly advise you contact us for assistance on the investigation and disciplinary process including framing the concerns and allegations fully and appropriate and communicating the final outcome.

No Obligation to Offer Redundancy Appeals?

As the vast majority of schools and their redundancy policies provide for an appeal when someone is made redundant, you may be surprised to hear that the Employment Appeal Tribunal (EAT) has reconfirmed in a recent case that appeals are not strictly necessary in a redundancy dismissal situation.

What happened?
The individuals were teachers who worked within a community school in Wales, employed by the Local Authority. They were made redundant following the closure of the school which was being replaced by a new school. They were told their jobs were at risk but they could apply for a position within the new school. They did this but were unsuccessful and so were made redundant. They were not given any right to appeal the decision to dismiss them and there was very limited consultation and so brought claims for unfair dismissal. The employer counter argued a right of appeal would not have made any difference to the outcome of their dismissal since the school was closing.

The original Tribunal decided that they had been unfairly dismissed because, among other things, they were not give the right of appeal nor had they undergone a meaningful consultation process. It was concerned that it was outside the “band of reasonable responses” (the test used for fairness of a dismissal) and therefore unfair to dismiss without an appeal and lack of consultation given the size and resources of the employer.

The EAT decision
The EAT referred to an earlier case which said that there is no rule that a redundancy dismissal will be automatically considered to be unfair simply because it did not have an appeal procedure. Therefore, in some cases it may well be fair to not offer a redundancy appeal. It said the overall fairness of the process needs to be looked at. However, on the particular facts of this case, the EAT said that in the setting in which the teachers were employed it would not be reasonable to conclude there was no expectation of an appeal. In this case, they had an expectation to appeal and not allowing them to do so and grieve for their dismissal, was unfair.

One relevant factor in this case was the Staffing of Maintained Schools (Wales) Regulations 2006 (“the 2006 Regulations”) which makes it clear (Regulation 17) that where a Governing Body determines to dismiss someone employed by the LA, it must notify the LA who will communicate this to the individual concerned. The Governing Body must however allow such a person to be given an opportunity to appeal that determination before notifying the LA. There is not an equivalent provision for English schools.

What does this mean for schools?
This case does confirm that there is no general rule that a redundancy appeal must always be offered, nor that by omitting to do so will the dismissal be unfair. It is interesting that the ACAS Code of Practice for Disciplinary and Grievance Procedures, recommends employers have an appeal process for disciplinary and performance cases. However, this does not apply to redundancy dismissals. Whilst there is an ACAS guide on redundancy (which states that it is good practice to offer an appeal) that guide is does not have the same legal status as the Code of Practice.

Offering an appeal can remedy any procedural flaws that may otherwise exist, reducing the risk of a successful unfair dismissal claim but, on the other hand, reversing a decision in a redundancy dismissal on appeal can impact on individuals who considered themselves to be “safe” in their role and create further uncertainty in an already stressful period. For Welsh schools subject to the Regulations referred to above, the right of appeal should be offered. Equally, for any Welsh or English school which incorporates the right of appeal into their policies or practices in redundancy situations, it would be likely to be unfair to not follow that. It is well entrenched in the education sector that appeals are generally offered (at least where the employee has over 2 years’ service) and so you are likely to face resistance from trade unions and employees if you do not follow this.

Having said that, there may be situations where you do not need to offer the right to appeal or at least you can abbreviate your appeal procedure somewhat. If nothing else, it may give you comfort to know that if an appeal is overlooked for a particular reason in a redundancy situation, this does not always make the dismissal unfair.

How can we help?
If you would like to discuss this further or are facing any redundancy situations, please do contact us for further advice.

Recent Updates

• Continuity of service: From April 2020 the break in continuous service for unfair dismissal purposes was intended to increase from 1 week to 4 weeks under the Good Work Plan. However, due to the Covid situation this was not implemented. It is still intended that this will come into effect in the future but the date is yet to be confirmed. Therefore, the current 1 clear week is still required to break continuous of service between contracts of employment.
• Aspects of the Good Work Plan came into effect in April 2020. For more detailed information please see our Easter newsletter.
• Parental Bereavement Leave and Pay came into effect in April 2020. For more information please see our Easter newsletter.

Upcoming Changes

• We await the new STPCD (at the time of writing) for both England and Wales. We understand this is likely to be published in October.
• There will no doubt continue to be further guidance and legislation passed in relation to Covid 19. We will continue to publish separate newsflashes on such matters.
• The Supreme Court has confirmed it will allow an appeal to be heard in the case of The Harpur Trust v Brazel which decided that the 5.6 weeks minimum holiday should not be pro-rated for those working term time only or less than 52 weeks a year. We await further details on when this may be heard.