Independent Education
SpotlightEducation Law News Winter Term 2013
CONTENTS
1 Employment Matters
2 Protected Conversations
2-3 Health and Safety Update
4 Rent Reviews in school leases
4-5 News in brief
Age Discrimination: Retirement Conversations are AcceptableAn Employment Tribunal dismissed claims of unfair dismissal and
age discrimination, despite age-related comments being made to
the claimant during her employment, including comments about
her retirement plans (Quick v Cornwall Council and another). The
age related comments were found to be reasonable in the context
of succession planning, and the management of that process, and
did not constitute age discrimination.
The judgment is helpful for employers as one of the practical
difficulties for employers following the abolition of the default
retirement age is how to approach the subject of retirement
with their older employees in a legitimate context without the
perception of any discrimination. ACAS have produced a guidance
document on working without the default retirement age which
outlines best practice. This can be viewed on the ACAS website:
www.acas.org.uk.
Is Obesity a Disability for Discrimination Purposes?A recent Employment Appeal Tribunal case has confirmed that
obesity is not in itself an impairment for disability discrimination
purposes. However, obesity may well make it more likely that an
employee has impairments within the meaning of the Equality
Act. In this particular case (Walker v Sita Information Networking
Computing Ltd) the individual had numerous physical and mental
conditions which caused him difficulty in his day to day life.
The EAT stated that the employer should concentrate on whether
the individual has a physical or mental impairment and it was
quite clear that this individual did have both.
For someone to be classed as having a “disability” the effect of the
impairment must be “substantial” – meaning more than minor
or trivial - and “long term” - ie. likely to last more than 12 months.
Consequently, if an obese individual is determined to lose weight
and the Tribunal could decide that the individual will reduce their
weight to normal levels within a year, this might mean that the
impairments were not long term for discrimination purposes.
The case confirms the general position that it is the impairment
that should be the main focus, not the medical condition itself.
For further information please contact
Nick Watson, Partner and Head of Employment,
on 01225 324435 or [email protected].
Caroline Banwell, Associate Solicitor, on
01223 451342 or [email protected]
Employment Matters
Schools are not “under a duty to safeguard children against harm under all circumstances”This was the conclusion of the Court of Appeal recently when it
overturned a County Court’s decision to award £3,215.16 damages
to a child who injured his thumb on a stainless steel drinking water
fountain when he lunged at and missed his brother in a water
fight. The facts are succinctly and helpfully set out by the Court
of Appeal in the judgment of West Sussex County Council v Lewis
Pierce [2013] EWCA Civ 1230 as follows:
“In the summer of 2010 [the claimant] was nine and a half years old
...[He] and his younger brother George, who was seven, were at the
school with their mother for an after school gardening club which
their mother helped to run. Whilst there the boys got into mischief.
They went over to the water fountain. George sprayed the claimant
with water from it and the
claimant then tried to punch
George, who by then, no doubt
prudently, was positioned
somewhere underneath
the water fountain. George
dodged the punch, the
claimant missed him , and
punched the underside of the
water fountain bowl instead,
sustaining a laceration to the
dorsal aspect of his right thumb and associated tendon damage.
The damage to the tendon was repaired shortly afterwards under
general anaesthetic. Happily, the claimant subsequently made a
full functional recovery. He was left with a hockey stick shaped scar
Health and Safety Update
Back in July last year, Nick Clegg and Vince Cable floated the idea
that employers should be able to be more open with members of
staff in the workplace. The Government wanted employers to be
able to have ‘protected conversations’ with their staff with the
aim that an employer would be able to discuss termination of
employment with an employee if things were not working out.
Under the Enterprise and Regulatory Reform Act 2013, protected
conversations will remain “off the record” and inadmissible in any
subsequent employment tribunal proceedings.
Schools should, however, take considerable care before having
“protected conversations” with members of staff as the scope of
the protection is somewhat limited as the protection only applies
to stand alone unfair dismissal claims (including constructive
unfair dismissal claims).
The protection does not apply to other types of claim, such as
breach of contract (wrongful dismissal), automatic unfair dismissal
and discrimination and protection will be removed in cases where
there has been “improper behaviour” such as harassment, bullying
and intimidation, victimisation or where undue pressure has been
placed on the other party e.g. by not giving reasonable time to
consider an offer.
Employers should act with caution when entering into any
pre-settlement conversations and weigh carefully any possible
advantages of having a protected conversation against the risk
of disclosure becoming admissible.
Protected Conversations
Above is the type of water fountain on which the boy injured his thumb.
‘The benefit of this is that schools will have greater flexibility in their choice of training provider as well as the ability to choose first aid training that is right for their school, and based on their individual needs.’
of about 2.7 cm on his thumb about which according to his own
medical evidence, he was completely unconcerned.”
The County Court judge found the underside to be “sharp” and a
risk to children larking about and therefore awarded damages to
the boy. No proper risk assessment had been carried out by the
school, and therefore the county council, on behalf of the school,
was found to be liable.
Fortunately for schools in England and Wales, about 20% of whom
have this sort of water fountain fitted, the Court of Appeal quashed
the County Court’s decision, concluding that the freak accident
was unfortunate but that for a school to be held to be responsible
for every accidental injury would mean that the law would have
“part[ed] company with common sense.”
For further information on carrying out risk assessments and other
health and safety matters please contact David Milton.
Working at height and proposed changes to the First Aid RegulationsThe need for appropriate training and risk assessment for school
employees working at height has come into focus following a
recent criminal prosecution brought under the Work at Height
Regulations 2005.
The circumstances are that a 61 year old caretaker, injured his knees,
ankles, neck and right hand as a result of falling from the roof of
a shed at a primary school in Oldham The caretaker had climbed
onto the roof and was attempting to place plastic sheeting on it
when he tripped and fell backwards, landing on a concrete floor
three metres below. He was unable to return to work full time and
was forced to retire.
The Magistrates’ Court received evidence to the effect that the
caretaker had started work at the school 6 years before the accident
and that he had not received any training on working at height,
contrary to the Regulations. The Magistrates handed down a fine
of £7,000 and also ordered the prosecution’s legal costs to be paid,
totalling £12,260.
After the hearing the Health and Safety Inspector who led the
investigation commented: “It’s disappointing that the caretaker
had been working at the school for six years without receiving any
training on how to work safely at height. Work at height is one of
the biggest causes of workplace deaths and injuries in the UK, and
this case should act as a warning to employers about the dangers”.
In the meantime, amendments have now taken place to the
Health and Safety (First Aid) Regulations 1981. The key change is
the removal of the requirement for the Health and Safety Executive
(HSE) to approve the training and qualifications of appointed first
aid personnel.
The benefit of this is that schools will have greater flexibility in their
choice of training provider as well as the ability to choose first aid
training that is right for their school, and based on their individual
needs. However, training providers will still be required to meet a
certain standard, which will be set by the HSE. Schools, like other
employers, will also still have the same legal requirement to ensure
that they have an adequate number of suitably trained first aiders
in accordance with their first aid needs assessment. Until such time
as the Regulations change the existing law continues to apply.
If you would like to ensure your compliance in this time of
ongoing Health and Safety uncertainty please take advantage
of our offer of a free review of your existing Health and
Safety Management System.
For further information please contact
David Milton on 01225 324433 or
Rent Reviews in School Leases Time machines and theories about the extinction of dinosaurs
are hypothetical. Leases too, can be hypothetical. When reviewing
the rent on a property that a school has taken a lease of, or that
a school leases to others, the hypothetical lease often comes
into question.
Many leases of commercial premises include a provision allowing
the rent to change over time. This ensures that the landlord
receives a rent reflecting the true value of the property. But, how
should the rent be reviewed?
The simple answer is, read the lease. But how should the review
clause be drafted in the first place?
◆◆ How often should the rent be reviewed (if at all)?
◆◆ What sort of review should be used?
◆◆ How should the review be actioned and enforced?
◆◆ Should a break clause be linked to the review, in order that the
tenant can bring the lease to an end if it is unhappy with the
reviewed rent?
Traditionally, a lease would include a five yearly rent review to
the open market rent. The drafting and operation of this type of
rent review can be complicated, since the lease to be valued – the
hypothetical lease – needs to be carefully defined. The drafting
will specify a number of matters that are to be assumed or
disregarded in order to create the hypothetical lease. One example
of a disregard is that, if a school as tenant pays for substantial
works to a property, those works should be disregarded from the
lease for the review; otherwise the works which (presumably!)
have improved the value of the property will cause a higher rent
to become payable, so the school will pay for the works twice.
In addition, traditionally the review would be upwards only,
such that the rent must be the higher of the current rent or the
reviewed rent – very popular with landlords and potentially unfair
to tenants. In today’s market, tenants are having more success in
objecting to upwards only reviews – a lease which is long enough
to contain review provisions is valuable to a landlord anyway
(shorter leases are now more common than they were twenty
years ago) – and the government’s tenant-friendly lease code
(although non-binding) recommends that landlords should offer
alternatives to upwards-only rent reviews, if asked.
Other review clauses include: indexation review (possibly including
cap and collar provisions) and stepped increase.
In today’s market which suits occupiers, combined with these
austere times, rent review clauses can be fiercely fought over.
Both landlord and tenant will require proper legal advice in order
to ensure that they are using their resources properly and in the
most cost-effective way possible. It is well worth ensuring that
they are satisfied with the review that has been selected and that
the drafting is robust enough to withstand scrutiny.
For further advice on rent reviews and property
issues more generally, contact Chris Sharpe on
020 7324 1752 or [email protected].
News in brief
Biometrics in schools – new duties came into effect on 1st September 2013 There are new legal duties under the Protection of Freedoms Act
2012 which came into effect on 1st September 2013 for schools
wishing to use biometric information about pupils for the purposes
of using automated biometric recognition systems. Schools using
such systems, or planning to install them, are advised to plan, in
advance, and make arrangements to notify parents and obtain
the consent required under the new duties, as set out in guidance
issued by the DfE. This will be particularly relevant for schools where
pupils are already enrolled and using the relevant systems. There
will be no circumstances in which a school or college can lawfully
For further advice or information about any of the news items or wider issues relating to your school, please
contact the Head of our Independent Schools Team, John Clarke, on 01225 324494 or [email protected].
s
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News in brief (continued)
process, or continue to process, a pupil’s biometric data without
having notified each parent of a child and received the necessary
consent after the new duties come into effect.
DfE updates its advice on standards for school premises On 2 May 2013, DfE updated its advice on standards for school
premises. The advice, which is non-statutory, is intended to help
schools understand their obligations and duties in relation to the
School Premises Regulations 2012 and Education (Independent
School Standards) (England) Regulations 2010.
There are fewer regulations than previously and they are less
prescriptive, allowing schools more flexibility in how they use their
premises. Many regulations state that provision must be ‘suitable’.
This is not precisely defined, but schools must take into account
the age, number and sex of pupils, and any special requirements
they have, when determining whether provision is suitable. This
guidance advises on how to meet the regulations. It also provides
signposts to other, more general, building and premises related
legislation and guidance of relevance to schools. For further
information visit the DfE website.
IT Policies We recently acted for an independent school defending an unfair
dismissal claim at the employment tribunal. In this case, a member
of staff brought inappropriate images into school on his personal
laptop. The school allowed members of staff to bring in personal
laptops but did not make specific reference to personal computers
within its IT policy. A new feature of windows media player is
the media sharing facility which, if a computer is not set up with
appropriate security settings, allows media files to be shared with
other computers on the same network.
A pupil accessed the images and they were shared very quickly via
Facebook and email, resulting in a local paper publishing a story
about the incident. The school carried out a thorough disciplinary
process and dismissed the teacher for gross misconduct (bringing
inappropriate images into school and damaging the school’s
reputation). The employment tribunal held that the dismissal was
fair and fully endorsed the school’s actions. As schools increasingly
allow staff and pupils to bring their own devices into school to
connect to the school network, it is important that schools make
sure all users are aware of file sharing features and that school
policies refer to both school-owned and personal equipment and
clearly state that staff and pupils are responsible for the material
that they bring to school.
Child Protection and Safe Recruitment DfE have launched a consultation on radical changes to the guidance
on recruitment and child protection. The thrust is to radically reduce
the degree of DfE guidance and to place the responsibility for good
practice firmly on schools. Notable changes will be firstly that it will
no longer be a requirement for schools to have a governor with
overall responsibility for child protection – a governor must be
nominated to deal with allegations against the headteacher – and
secondly that although there is a general requirement that those
who sit on staff recruitment panels should be trained there will no
longer be a statutory requirement that one member of the panel
should have undergone training approved by the Secretary of State.
The consultation document and draft guidance are available on
the DfE website under Consultations. The consultation closed on
Thursday 20th June.
Carbon Reduction and Sustainability Sally McFadden, head of our Energy and
Environment Team, recently qualified as
an Associate Member of the Institute of
Integrated Environmental Management
& Assessment which is an internationally recognised body and the
leading environmental institute in the UK. This expands our expertise
in the developing field of energy management and sustainability
and entitles Sally to use the suffix AIEMA. Sally McFadden 01225
326794 or [email protected]
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www.stoneking.co.uk email: [email protected] © Stone King LLP 11/2013
Independent Education Spotlight deals with some current legal topics. It should not be used as an alternative to specific legal advice on the individual circumstances of a particular problem. Stone King LLP – registered limited liability partnership no OC315280, registered office 13 Queen Square, Bath BA1 2HJ
Your Contacts
Education: John Clarke Partner Roger Inman Partner Graham Burns Partner Stephen Ravenscroft Partner Richard Gold Consultant Geoffrey Davies Consultant Tom Brooke ConsultantLaura Berman Senior Associate Michael Brotherton Senior Associate Kate Grimley Evans Solicitor Nicola Berry Solicitor Lydia Brookes Associate Ciara Campfield Associate Laura Giles Solicitor Venetia Phipps Solicitor
Health & Safety: Andrew Banks Partner David Milton Associate Solicitor
Construction Team:Julia Davenport-Cooper
Senior Associate Melanie Parker Associate
Charity & Social Enterprise: Michael King Partner Jonathan Burchfield Partner Robert Meakin Partner Ann Phillips Partner David Quentin ConsultantAlexandra Whittaker Senior Associate Hannah Kubie Senior Associate Tom Murdoch Senior Associate Vicki Bowles Barrister Sarah Clune Solicitor Darren Hooker Solicitor Reema Mathur Associate Sophie Pughe Solicitor
Commercial Property: Hugh Pearce Partner Stephanie Howarth Partner Hugo Greer-Walker Partner
Corporate and Commercial: Roy Butler Partner Brian Miller Senior Associate Tamsin Eastwood Senior Associate Caroline Leviss Senior Associate
Employment: Nick Watson Partner Peter Woodhouse Partner Jean Boyle Associate Caroline Banwell AssociateVictoria Blake HR ConsultantAgie Galea HR Consultant Paul Tunnicliffe HR Consultant Amy Gordon Solicitor
Energy & Environment: Sally McFadden Associate Sarah Lawson Paralegal