In the UK there are two legal definitions of insolvency. The first is where an individual or...
Employment tribunals and the education sector
As I peruse the plentiful supply of decided employment cases emanating from the employment tribunal system, it seems to me that more and more involve educational establishments of one kind or another. That may be because such establishments are increasingly run as a “business”, and subject to the open market in much the same way as the rest of us. Then again, it could be that I just follow this sector more closely.
Either way, education cases do make interesting reading, often involving facts particular to the education sector, whilst adding to the broader development of employment law.
In Cumbria County Council and the Governing Body of Dowdales School v Bates 2013, for example, the claimant teacher was found to have been unfairly dismissed. After his dismissal, he was convicted of common assault on a 16 year old girl who was his former pupil and he was sentenced to six weeks’ imprisonment.
Initially, the employment tribunal refused to take into account Mr Bates’s post-dismissal conduct in assessing his compensation award at the then maximum of £66,200, and how that might affect his future employment prospects. Compensation in this respect should relate to losses attributable to the unfair dismissal.
However, that decision has now been successfully appealed so that his conviction may now be taken into account in assessing the compensation to him, comprising pension loss.
School bursars, in particular, might note the case of Mitchell v St Joseph’s School 2013, where the school bursar failed to disclose the parlous state of the school’s finances to the Board of Governors, although he did disclose the state of affairs to two members of the Board. However, this did not mean that the Board itself had knowledge of the finances and the question for the employment tribunal (the well established and usual one in an unfair dismissal misconduct case) was whether the decision to dismiss fell within a range of reasonable responses open to an employer in all the circumstances, which the employment tribunal agreed that it did.
The use of fixed term contracts is common in schools and colleges and, while this practice has its advantages, schools, colleges and indeed all other employers need to be aware that the non-renewal of a fixed term contract is still a dismissal which might in certain circumstances, be unfair, particularly where the individual concerned has built up longer continuity of service, perhaps through a number of successive fixed term contracts. Tansell v Henley College Coventry 2013 involved the employment of seasonal staff on fixed term contracts for the academic year and is a reminder of this, and how an employer must identify the potentially fair reason for such a dismissal, be it redundancy or some other substantial reason.
Costs of proceedings in employment tribunals are generally borne by each party, although not if one party has acted unreasonably or vexatiously or their argument has no reasonable prospect of success. In Nouchin v Norfolk County Council 2013, the claimant was subject to disciplinary proceedings in relation to his capabilities as a teacher, but alleged that these proceedings were only brought against him after he had raised complaints of discrimination. The respondent claimed that Mr Nouchin only raised the discrimination issues to divert attention away from the capability allegations against him.
At the subsequent 25 day employment tribunal hearing, the claimant withdrew all of his claims after nine days. Given that Mr Nouchin did not complain about matters related to race discrimination until after the capability proceedings against him had started, the respondent’s application for costs was successful, and at £180,000 would be likely to cause Mr Houchin some difficulty in repaying.
These cases seem to confirm the wider picture that, of those cases going to a hearing, employers actually win most of them.
For further information please contact Tim Ogle. Tim is an employment lawyer specialising in advising schools.