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Are children in your school the least of your worries?
Head-teachers, governing bodies and local authorities may sometimes feel that the children in their school are the least of their worries, as they grapple with the demands of a complicated business, often employing dozens of staff in a variety of roles and generally becoming involved in a whole range of employment issues, from collectively agreed terms, to discrimination complaints, to TUPE.
Whilst the employment legal process generally makes no special provisions for schools and colleges, which are subject to the same rules as anyone else, there are nonetheless some interesting cases which are perhaps particularly relevant to the education sector.
In Hill v governing body of Great Tey Primary School, the claimant was a midday dinner assistant. On finding out about a child being tied up and whipped across the legs by other pupils, she told the child’s parents and was suspended. She complained to the press about the suspension and in doing so confirmed what she had told the parents, so was dismissed for breaching her obligations of confidentiality and acting in a manner likely to bring the school into disrepute.
The claimant won her unfair dismissal case on the basis of an unfair procedure but the employment tribunal found that had a fair procedure been followed, the claimant would have been dismissed within two months anyway, and it reduced her award by 80% for contributory fault. However, the claimant has successfully appealed this finding on remedy, which is to be re-determined. We await that decision with interest.
In another case, the governing body of White Cross School found out to its cost that when it made an honest and genuine mistake as to the amount of sick pay to pay to a teacher (who was on sick leave with stress and depression) it still amounted to a fundamental breach of contract, entitling the teacher to resign and claim constructive dismissal. The school had mistakenly interpreted the relevant collective agreement covering sick pay, thinking it covered physical but not mental injuries. However, the school had a “settled intention” not to pay the full contractual sick pay due; the important point was not that the mistake was genuine but that it had acted on its view of the contract, rather than simply asserted it.
Finally, schools and colleges like other employers will, no doubt, be relieved to hear that any action they take in the preparation of a case for trial, including preparation of witness statements, cannot be used as a ground for a claim. In Singh v Reading Borough Council, a former head teacher brought tribunal claims of race discrimination, harassment and victimisation against her by parents, staff and governors at her school. Whilst the claimant was still employed as head teacher, the school served a witness statement on her from the clerk to the governing body. The claimant alleged that the statement contained lies as a result of improper pressure being put upon the clerk by the respondent. The claimant resigned, saying that the witness statement was the “last straw” and then unsuccessfully sought to amend her tribunal claims by adding one for constructive dismissal.
It’s never easy out there, but with more schools converting from local authority control to academy status there will come a need for each school to be able to deal with such difficult employment law issues itself.