Employment law for schoolsJune 2017

Darren Newman

Tribunal reasons

• Withdrawal will show up as a decision – but with no details of the case

• Decisions given on the day will be explained orally – written reasons will not go into any detail

• Full written reasons will be given if the decision is reserved

• Full reasons also given if either party requests them within 14 days

• Full reasons needed if decision is to be appealed

Redundancy

• The genuine reason?

• Fair selection criteria

• Method of applying criteria to individuals

• Consideration of alternative work

• Consultation – individual and collective (if more

than 20 employees at one establishment)

Mental Health Care (UK) Ltd v Biluan

& anor (EAT 2013)

• Employer uses ‘competency assessments’ in

selection for redundancy – same tests as used

in recruitment

• No opportunity to review actual performance

(other than sickness and disciplinary record) –

all based on assessment centre results

• Held to be unfair – employees should have been

given a chance to rely on their record

"In some cases I was very surprised at the results. There were several employees who had been selected who I felt, from my experience as Hospital Manager, were very good workers. Nevertheless, because the process had been so robust, they were selected via the agreed processes and made redundant even though they were good employees. Given that we adopted such a fair and transparent process, the decision to make them redundant could not be overturned. I therefore had to accept the situation even if I disagreed with the results."

Green v LB Barking & Dagenham (EAT May 2017)

• Employee dismissed based on selection

interview – three roles reduced to two

• ET held fair dismissal – no need to show

objective selection criteria when ‘recruitment’

kind of redundancy

• EAT say interview is not a short cut – still have to

show fair selection criteria, properly applied

Consultation

• ‘with a view to reaching an agreement’

• Carried out while proposal is at a formative

stage

• Adequate information to enable a response

• Time to formulate a response

• Genuine consideration of the response ‘in good

faith’

TUPE – things to remember

• TUPE is automatic – everyone in the ‘organised

grouping’ transfers

• Where TUPE involves redundancies, they

should be carried out after the transfer not

before

• Need to distinguish between contractual terms

and non-contractual policies – both ‘transfer’ but

only contractual terms are entrenched

Trade Union Act

• Key provisions came into force March 1st!

• 50 per cent industrial action balloting threshold

• 40 per cent ‘yes’ vote requirement in important public

services

• 2 weeks’ notice of industrial action

• 6 month limit on industrial action ballots (9 months

with employer’s agreement)

• Union supervision of pickets

• Date for Check-off rules not yet set

Important Public Services

• Transport: Passenger railway services (including

trams) – both drivers and operational staff. London

buses. Air traffic control, airport security, ports,

• Health: Emergency hospital and ambulance

services – NOT general health care provision

• Education: Teachers and headteachers / principals

in schools and academies

• Fire: Firefighters and those handling emergency

calls

• Border force: Officers of all grades

Transition

• Balloting thresholds and mandate:• Will not apply ‘to any ballot opened before the day on

which this section comes into force’

• A ballot is ‘opened’ on the first day when a voting paper is sent to any person entitled to vote in the ballot

• That is the ‘opening day of the ballot’ that the union must already notify to the employer under s.226A TULR(C) Act 1992

• Two weeks’ notice applies to any notice given from 1st March onwards

Deducting a day’s pay

• Apportionment Act 1870 says salary accrues

‘day by day’

• In Hartley and others v King Edward VI

College Supreme Court held that meant one

day was 1/365 salary

• Overturned Court of Appeal which said 1/260

based on five day week

• Parties are free to agree a different rate of

accrual

Trade Union Activities

• Automatically unfair to dismiss for taking part in union activities ‘at an appropriate time’

• But gross misconduct not protected just because it is committed in course of union activities

• Metrolink Ratpdev Ltd v Morris – employee rep received photo of private page of manager’s desk diary – tried to use that in grievance case

• Held: Not automatically unfair. Employee had breached trust by retaining unlawfully obtained information

Unlawful inducements

• Unlawful to make an ‘offer’ to a member of a recognised

trade union if• Accepting the offer will mean worker no longer covered by collective

bargaining – or terms covered by collective bargaining will be reduced

and

• The employer’s ‘sole or main purpose’ is to achieve that result

• Remedies are extraordinary:• Automatic compensation £3,907

• Also

• entitled to the value of the offer made by the employer

• Be VERY cautious about any changes to terms which

impact on scope of collective bargaining

Beatt v Croydon Health Services

NHS Trust

• Heart surgeon in department with poor working relationships

• Objects when a nurse is suspended during working day – claims it led to death of a patient

• Dismissed for making false and unsubstantiated claims

• Tribunal finds he acted in good faith

• Dismissal automatically unfair – doesn’t matter that employer thought disclosures were not protected

Dealing with employee ‘pushback’

• Employee has an implied duty of faithful service – undermining employer online may be a breach of that

• But - do not overreact to online comments about change

• Distinguish between legitimate concern (forcefully expressed) and comments that are actually improper

• Intervening may cause more harm than ‘letting it go’

A v B & C Governing body of school

• Headteacher has relationship with individual convicted of making indecent images of children

• Dismissed because she failed to disclose that to the school (and LADO subsequently found out)

• ET finds procedurally unfair – but dismissal would be justified, so no compensation

• Court of Appeal upholds decision (by majority)

• Employer entitled to require disclosure to ensure it is meeting its safeguarding duty

• Permission given to take case to Supreme Court

Discrimination ‘arising’ (s.15)

• Dismissal for sickness absence will be disability discrimination unless ‘a proportionate means of achieving a legitimate aim’

• In O’Brien v Bolton St Catherine’s School (CofA15 March) employee off for a year with PTSD

• No prospect of return at hearing – but fit note at appeal saying employee now fit

• Appeal ignores evidence – only reviews original decision

• ET finds unfair dismissal and discrimination

• Court of Appeal upholds (by a majority)

City of York Council v Grosset

• Teacher dismissed for showing ‘Halloween’ to

vulnerable 15 and 16 year olds

• Held to be a fair dismissal

• But unjustifiable discrimination – evidence

showed that misjudgment arose as a result of

stress arising from his Cystic Fibrosis

Charlesworth v Dransfields

Engineering Services Ltd

• Employee absent for cancer treatment

• While he is away, employer works around his

absence

• Finds that they can reorganise and delete his job

– make him redundant

• Held no s.15 discrimination – dismissal was not

‘because of’ absence even though absence

gave opportunity for dismissal

Essop v Home Office; Naeem v

Ministry of Justice

• Supreme Court ‘sorts out’ indirect discrimination

• Essop: CA held you need to know the ‘reason’

for the disadvantage

• Naeem: CA said no indirect discrimination if

there is a non-discriminatory explanation

• Supreme Court said CA wrong in both cases

• Key issue is justification: nothing to be ashamed

of

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Darren Newman

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