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Where an employee is summarily dismissed just short of acquiring protection from unfair dismissal, can one week's statutory notice be added to the length of their employment?
No, held the Employment Appeal Tribunal (EAT) in the case of Lancaster and Duke Ltd v Wileman, holding that an employer retains the right to dismiss without notice where an employee has committed gross misconduct and the statutory weeks' notice therefore should not be applied.
The Claimant was employed as a recruitment consultant from 22 September 2014. She was summarily dismissed (ie without notice) for gross misconduct on 20 September 2016, two days short of having the necessary two years continuous employment to bring a claim of unfair dismissal.
The Claimant brought a claim to the Employment Tribunal (ET) for unfair dismissal, arguing that her length of service was extended by the statutory minimum notice period of one week and that she therefore had sufficient service to bring the claim.
Under section 86(1) of the Employment Rights Act 1996 (ERA) an employee with less than two years' service is entitled to the statutory minimum of one week's notice to terminate their contract. Section 86(6) ERA provides that this does not affect the right of a party to terminate the contract without notice where the reason for termination is the conduct of the other party.
Under section 97(2) ERA, where an employment contract is terminated without the statutory notice required by section 86 being given, the date of termination of the contract for the purposes of calculating continuity of employment for unfair dismissal is deemed to be the date on which that notice would expire had it been given.
The ET applied section 97(2) and held that the Claimant was able to bring a claim of unfair dismissal. The ET's view was that the statutory minimum notice should be added when calculating the Claimant's continuity of employment.
The Respondent appealed.
Decision of the EAT
The EAT upheld the appeal. They found that section 97(2) was subject to the employer's right to terminate without notice where an employee is guilty of gross misconduct (contained at section 86(6)). The ET had been wrong to hold otherwise and the week of notice should not have been automatically applied.
The ET had not addressed the question of whether the Claimant was guilty of gross misconduct which entitled the Respondent to dismiss her without notice. The case was therefore remitted back to the ET.
This case makes clear that where an employer can legitimately terminate an employee's contract without notice for gross misconduct, the statutory notice period of one week cannot be added when calculating whether the employee has sufficient continuity of service to bring an unfair dismissal claim.
However, where an employer is considering ending an employee's employment within the first two years of employment it is always best to take action in good time to avoid the issues in this case arising.
The Employment Appeal Tribunal (EAT) determined, in the case of Flowers v East of England Ambulance Trust that voluntary overtime paid over a sufficient period should be taken into account when calculating pay due to an employee during their annual leave.
In this case, all of the Claimants were employed by the Trust in a range of roles concerned with the provision of ambulance services. They all had normal working hours, in addition to which they could work two different types of overtime:
overtime that was required when a shift overruns (ie if their shift ends during an emergency)
voluntary overtime that the workers could choose to do when it was offered (ie additional shifts planned in advance)
The Claimants pursued a claim for unlawful deductions from wages claims in relation to how the trust had calculated their holiday pay during periods of annual leave. It was claimed that the Claimant's paid annual leave should include amounts received during periods of non-guaranteed overtime and voluntary overtime.
The Employment Tribunal held that although the Trust needed to include non-guaranteed overtime for shift overruns in the workers’ holiday pay, voluntary overtime shouldn't be included because there was no obligation on staff to accept the overtime. The Claimants appealed and the Respondent cross-appealed the decision.
The EAT allowed the Claimants’ appeal on each basis and dismissed the Respondent’s cross appeal. The EAT considered whether the calculation of holiday pay should take account of overtime falling within both the categories outlined above.
The EAT held there to be no basis to distinguish between non-guaranteed and voluntary overtime as both types of overtime were linked to the employment contract. The question to consider was if the overtime was part of the worker's "normal" remuneration. In these circumstances both elements of overtime fell within the definition of "normal" remuneration.
As we have previously reported, there has been a significant number of cases relating to the calculation of holiday pay. For shift workers, holiday pay is usually calculated by working out the average number of hours worked in the previous 12 weeks at their average hourly rate.
Employers whose workers are required to regularly work overtime, for example after their shift has ended in order to finish off work on emergency or other matters, are likely to need to include overtime payments made to workers for that overtime when calculating their holiday pay entitlement.
When voluntary overtime is worked, an employer will need to consider whether the nature and frequency of the overtime worked could amount to normal remuneration, and consider taking it into account when calculating the payment due during periods of annual leave.
In the case of Ali v Torrosian and others (t/a Bedford Hill Family Practice), Dr Ali successfully appealed to the EAT against a decision that the GP practice in which he had worked had not discriminated against him by dismissing him on capability grounds.
Dr Ali had suffered a heart attack and had been absent from work for around 12 months, and the Practice accepted that he was disabled within the meaning of the Equality Act 2010. Dr Ali provided the Practice with a medical report which suggested that it was unlikely that he would ever be able to return to work full-time, but that he would be in a position to return to work part-time on a phased basis. This possibility was discussed with Dr Ali at a meeting, but he was then signed off for a further 6 weeks due to an unrelated shoulder injury and the Practice dismissed him on the grounds of capability.
Dr Ali brought claims of unfair dismissal and disability discrimination. The Tribunal held that the dismissal was procedurally unfair due to the Practice's failure to adequately consider Dr Ali returning to work on a part-time basis; but rejected his claims of disability discrimination finding, in relation to his claim for discrimination arising from disability, that although the decision to dismiss arose in consequence of his disability, it was objectively justified as a proportionate means of achieving the Practice's legitimate aim of ensuring the best possible patient care.
Dr Ali appealed against the rejection of his claim for discrimination arising from disability and the EAT allowed the appeal; noting that although the Tribunal had considered the issue of part-time working for the purposes of the unfair dismissal claim (when the ET recorded that the Practice had accepted this had been a possibility), it had failed to consider it in the context of the disability discrimination claim, and in particular had failed to consider whether the possibility Dr Ali returning to work part time was an alternative and less discriminatory means of meeting the Practice's legitimate aim.
The EAT remitted the case to the Tribunal for reconsideration on the issue of proportionality in light of its finding that accommodation of part-time working was a possibility.
This case provides a useful reminder that, before dismissing for long term absence, employers should consider all possible alternatives and assess their viability, or they could find that the dismissal is not only unfair, but also discriminatory. A reduction in hours may often be a possible alternative to terminating employment and something that employers ought not only to consider, but also ensure that they can evidence their consideration of, and any reasons for rejecting the possibility.
A recent case has highlighted some key issues for academies to consider when managing their estates.
What Does the Law Say?
Under the Commons Act 2006, an application can be made to register land as a town or village green if it can be shown that a significant number of the inhabitants of a locality, or a neighbourhood within a locality, have used an area of land 'as of right' (ie without force, secrecy or permission) for a period of at least 20 years for the purposes of sports and pastimes. Anyone can make an application to register a piece of land as a new town or village green.
The playing fields and other undeveloped land that you own are vulnerable by their very nature to such an application.
There are several consequences of land being registered as a town and village green including:
It is a criminal offence to interrupt the use of the land.
There are restrictions on building or driving on the land.
The value of the land may be reduced.
The regime therefore protects the land from development and, as a consequence of this, the town and village green regime is often used as a tactic by those opposed to development.
Why Is the Case Relevant?
In the case of of R (on the application of Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs and another, one of the reasons the Council asserted that the land should not be registered as a town and village green was because it was educational land and therefore could not be used for educational purposes if it was registered as a town and village green.
On appeal, the Court of Appeal upheld the High Court's decision to reject this argument and agreed with the High Court's assessment that the land could still be used for some educational purposes despite it being registered as a town and village green (recreation and open air classes) albeit the educational uses it could be used for were much more limited.
What Does This Mean for Academies?
The case shows that educational land is not immune from being registered as a town and village green. Academies should therefore carefully monitor any historic or regular use of any part of their site by locals.
This could be a concern if you have development plans for land or are considering disposing of land to generate funds to enhance existing facilities, because (as mentioned above) the town and village green applications process is often a ploy used by those opposed to the particular development or disposal.
In addition, this will also be a relevant consideration when undertaking due diligence in the context of bringing new academies within the Trust.
Where land is already owned by academies, schools could employ an active management strategy to manage any such use and try prevent any rights being acquired. Positive action (such as the locking of gates, closing any gaps in fences providing access and putting up signs stating that access is prohibited etc.) can assist in evidencing that the use is not 'as of right'.
We have a dedicated team of property lawyers specialising in advising academies on all types of property issues.
New Careers guidance and access for education and training providers was published by DfE in January 2018. Some of these changes were effective immediately, however further requirements will come into force from September 2018.
This article is therefore intended to be a timely reminder for schools. The DfE has indicated that further information and support will also be made available in September 2018.
Since September 2012, schools have been under a statutory duty to provide independent careers guidance to pupils from Years 8 to 13, which is presented in an impartial manner (without bias or favouritism towards a particular institution or path), includes information all education or training options available (including apprenticeships and technical education routes) and promotes the best interests of the pupils.
From January 2018, schools were required to:
give a range of education and training providers the opportunity to access all Year 8 to 13 pupils for the purpose of informing them about approved technical qualifications and apprenticeships
publish a policy statement setting out the arrangements for provider access on its website, and ensure that it is followed (Annex A of the guidance sets out an example policy statement for this purpose)
begin using the Gatsby Charitable Foundation's Benchmarks (see below), with the aim of meeting them by the end of 2010
in relation to the 'Encounters with employers and employees' benchmark, begin to offer pupils at least one encounter per school year from Year 7 to Year 13, and meet this benchmark by the end of 2020
The Gatsby Charitable Foundation's Benchmarks
The Benchmarks create a framework for schools to rely on to demonstrate compliance with their legal duties, and ensure standards of excellence are being met. In summary, the Benchmarks include:
a stable careers programme
learning from career and labour market information
addressing the needs of each pupil
linking curriculum learning to careers
encounters with employers and employees
experiences of workplaces
encounters with further and higher education
The guidance gives detailed information in relation to all of the Benchmarks, and how schools are expected to meet them.
What Are the New Requirements?
From September 2018, schools must also:
appoint a named person to the role of 'Careers Leader' to lead their careers programme
publish the name and contact details of the school's 'Careers Leader' on their website
publish information about their careers programme on their website, which must include how they measure the impact of their careers programme on pupils and the date of the next review of the published information
The DfE intends to publish further information and support in September 2018, including job specification and standards for Careers Leaders. They have also stated that, during 2018 and 2019, Careers Leaders training will be funded for 500 schools and colleges. By the end 2020, all schools will also have access to an Enterprise Adviser.
What About Ofsted Inspections?
Careers guidance will be considered during Ofsted inspections in accordance with their Common Inspection Framework and School Inspection Handbook.
For further information or advice, please contactJoanna Goddardin our Regulatory Compliance team on 0207 665 0805.
Employee wellbeing and resilience are hot topics in HR right now. Why should it be a priority for your school or academy trust?
Here are some tips on how to get started or progress on your school/academy trust's wellbeing journey.
What Is Wellbeing?
Essentially wellbeing is about creating a state of contentment where individuals can flourish*. Resilience is about an individual's 'bouncebackability' and developing resilient employees is likely to feed into a wellbeing agenda.
Historically, wellbeing has focussed on safe working practices or management of ill-health. But more recently, a much more holistic view of employee wellbeing has developed.
Sitting alongside this, there has been much more of a focus on employee mental health, given the escalating numbers of employees suffering with poor mental health and the evidential links between poor mental health and poor work outcomes. This is highlighted in the government's recent review undertaken by Dennis Stevenson and Paul Farmer, which places responsibility on employers (along with other stakeholders) to take greater responsibility for employee mental health. In particular, Stevenson and Farmer recommended that all employers, regardless of size, should implement mental health core standards in their business.
If this isn't enough to persuade you that employee wellbeing should be high on your agenda, there is growing evidence to suggest that investing in this area produces measureable returns in the shape of more productive employees and lower sickness absence as well as making your organisation a great place to work.
What Can You Do to Improve Wellbeing?
Whilst a number of organisations have some wellbeing initiatives already in place, the evidence shows that wellbeing programmes will be most successful where they are central to the workplace. So where should you start?
Get buy in at a senior level. Your senior leaders set the tone and lead by example.
Identify what will work for your school/academy trust. No two workplaces are the same and what is important to one workforce might not be to another. Speak to employees via employee forums, wider meetings with staff or surveys to drill down into the details of what initiatives might work best. Look into whether there are any recognised wellbeing initiatives that might be useful.
Prioritise. Are there any quick wins you can introduce? Certain initiatives may be cheaper and easier to implement - get moving with these and then move onto the trickier, longer term projects.
Keep wellbeing on the agenda. Don't just tick it off the list and move on. Keep the conversation alive by continuing to publicise what you are doing.
Monitor and evaluate. Only by doing this will you see what is working and positive outcomes will pave the way for future investment.
A new Academies Financial Handbook was recently published which comes into effect on 1 September 2018.
The Handbook continues to helpfully list all of the 'musts' in Annex C and it also still refers to those matters of minimum good practice which it refers to as the 'shoulds'.
There are a number of changes to the Handbook which simply emphasise the existing position and/or clarify wording.
The new obligations which it contains include:
Financial Oversight The board and its committees should meet regularly enough to ensure they discharge this duty and, if not, the board should explain how they maintain financial oversight in its governance statement.
Budget Forecasting The Trust must submit a budget forecast return outturn and a 3 year budget forecast return by specified deadlines and following the approval of the full board.
Budget Management There are new provisions around ensuring rigour and scrutiny in budget management by the board and its committees.
Executive Pay There are new procedures that must be followed regarding making decisions about executive pay.
Internal Audit Processes There are a number of options available for the Trust to determine its programme of risk review and checking of controls which the Trust must choose from and explain its decision.
Related Party Transactions The Trust must report all related party transactions entered into on or after 1 April 2019 to the ESFA and obtain the ESFA's consent for transactions over the value of £20,000 or which would take the total value of such contracts beyond £20,000 in the same academy financial year.
For more detailed information about these new obligations as well as existing obligations within the Handbook, please see our checklist for compliance available on Academies OnStream.
Academy trusts should consider the 10 questions asked in the anti-fraud checklist within the guidance and make appropriate arrangements should there be any gaps in their fraud risk management strategy.
The guide contains a new cyber-crime and cyber security checklist which explains the different potential malicious attacks on computer software, such as email hacking, phishing and malvertising, and minimum actions that can be taken to tackle these risks of fraud.
Any fraud, theft or financial irregularity exceeding £5,000 (either individually or cumulatively in an academy's financial year) must be reported to the ESFA under the Academies Financial Handbook. Any fraud below this value of a particularly unusual or systematic nature must also be reported, such as regular low value theft.
We recommend that trustees familiarise themselves with the updated guidance and consider whether any further action is needed as part of their risk assessment for fraud in their academy trusts.
New Trustee Disqualification Rules
From 1 August 2018, changes to the automatic trustee disqualification rules will affect academy trustees and senior managers. There will be two key changes:
There is an increase in the number of reasons that will disqualify someone from acting as a trustee, including certain unspent criminal convictions (eg terrorism offences, money laundering and bribery), or being named on the sex offenders register.
A person who is disqualified from acting as a trustee will also be disqualified from holding certain senior management positions within an academy trust (eg chief executives or chief finance officers).
The Charity Commission has published some useful guidance on what the changes are and how charities can prepare for them.
Sign up to Academies OnStream to access our free trustee declaration form, designed to help you trusts meet their obligations.
For more information on how we can assist you with governance related queries, please contact Jaime Hobday in our Academies team on 0121 227 3703.
The DfE's response to the recent consultation and latest draft update to Keeping Children Safe in Education (KCSIE) was published on 17 May 2018.
This is due to come into force on 3 September 2018 (you should continue to refer to the 2016 version of the guidance until then) and is likely to be amended again before implementation.
What are the key changes and will there be further amendments before September?
KCSIE - Key Points from the Latest Version
There are a number of changes from the latest draft version of KCSIE which was consulted on earlier this year. What are the key points?
Part 1 - Safeguarding Information for All Staff
There is an extension of the materials to be covered on induction.
Staff are required to be particularly alert to the potential need for the early help of some defined classes of individuals.
The Designated Safeguarding Lead (DSL) and their deputies should have a complete safeguarding picture. They are identified as the most appropriate staff members to advise on the school's response to safeguarding concerns and to lead on early help considerations. If they are not available, staff should speak to the Senior Leadership Team or children's services without delay and follow up/escalate matters if information is not forthcoming.
Schools should identify other whistleblowing mechanisms available to staff who feel unable to raise concerns with the school directly.
All staff should consider the wider context in which safeguarding incidents or behaviours occur.
Part 2 - Management of Safeguarding
The principal changes relate to clarification of responsibility - they make it clear that responsibility sits with Governing Bodies/Trust Boards, but add more focus on safeguarding being everyone's responsibility and the individual responsibility on all staff that this principle carries.
Governing Bodies and Trust Boards should have a senior board level lead to take leadership responsibility.
Multi Academy Trusts (MATs) should ensure that each academy has its own Child Protection (or Safeguarding) policy.
Information sharing is justified where safety may be at risk and/or to support pupils' transition to new schools.
All staff should be clear about procedures for managing allegations of peer-on-peer abuse.
Schools should have clear arrangements to support previously looked-after children and care leavers, as well as looked-after children.
Schools should have policies in place to support appropriate physical contact and the use of reasonable force for all pupils.
School leaders and those who work directly with children should read Annex A which contains new information about specific forms of abuse and safeguarding issues.
Further revisions are likely to be made to this section (and other areas of the guidance) to reflect the changes made to Working together to safeguard children (WT), the GDPR and the Data Protection Act 2018 (DPA 2018).
Parts 3 and 4 - Safer Recruitment/Allegations of Abuse Made Against Teachers and Other Staff
Minor changes have been made to improve clarity. No new requirements have been introduced.
Part 5 - Child-on-Child Sexual Violence and Sexual Harassment
This is a new section. It is markedly different from the guidance attached to the consultation and focuses on the identification of concerns. It should be read in conjunction with the non-statutory advice on this topic.
If you would like to read Yvonne's full article on the draft guidance, which includes some practical advice as to what you can be doing now in preparation for September and further consideration of the regulatory framework for safeguarding, please visit Academies OnStream.Yvonne Spencer is a Partner in our Regulatory Compliance team. Should you have any queries about the issues raised in this article, please do not hesitate to contact Yvonne on 020 7665 0870.
At our most recent Practice Management conference in Bristol there was some discussion from the floor regarding practice managers becoming partners.
A small but significant minority of the practices we act for have non-GP managing partners, and there is every reason to think that there will be more of them in time. Practices are also looking to broaden the range of individuals who become partners by taking on nurse practitioner partners, pharmacist partners, and so on. Why should practice managers (PMs) not become partners too?
Why Become a Partner?
For the practice managers, the motivation could be the prospect of earning more money. Achieving the status of Partner may be seen as important - appearing on the firm's notepaper may look good, but such considerations have to be balanced against the commercial risk and liability which comes with being held out as a partner. It may also be less difficult to manage one's peers, than it is to manage one's employers!
How Much Should a Managing Partner Receive?
At the conference the question was asked: what level of profit should PMs receive on taking on partnership? There is of course no correct answer to this and our experience is that the profits due to practice manager partners vary widely from one practice to another. One sometimes sees practice manager partners receive a fixed share, equivalent to his or her salary beforehand. At the other end of the scale we have seen practice manager partners receive a full parity share, equivalent to a full time GP.
If a practice manager partner is to argue his or her case with the partners, the issues for discussion will largely be the same as one would raise when discussing a pay rise: in short, what value you add to the practice and how much easier you make the partners' lives. The higher performance a PM partner can demonstrate, the higher he or she should expect his or her profit share to be. The difficulty of course is measuring a practice manager's performance in the first place - which is where the negotiation skills come in!
Under the GMS Regulations, a PM can become a partner, and a signatory to the GMS contract, as long as there is at least one other partner who is a General Medical Practitioner.
As far as the other partners are concerned, they should be aware that by making the practice manager a partner, they are conferring presumed authority on the PM to bind the Practice for all liabilities incurred in the ordinary course of the business (no matter what limits may be set out in the partnership deed).
Any practice manager should be aware, of course, that by becoming a partner they assume joint and several liability for all risks and liabilities of the partnership business, including liability for professional negligence claims. So a new managing partner should make sure that appropriate insurance cover is in place. This is generally not very expensive.
If the PM is to be a salaried or fixed share partner, he or she should consider obtaining a release from principal creditors of the practice (eg a bank or a landlord) making it clear that the practice manager, although held out as a partner, is not responsible for those liabilities.
Loss of Statutory Rights
A practice manager should be aware that by becoming a partner, they automatically cease to have the many employment protection rights and benefits, which go with employed status. Whilst the normal anti-discrimination legislation generally applies to partnerships, rights not to be unfairly or constructively, dismissed will not be applicable nor the statutory rights to maternity or adoption leave, which should normally be replaced by appropriate provisions in the partnership agreement.
The Partnership Agreement
Other amendments will be needed to the partnership agreement. For example the GP partners should indemnify the PM against any clinical negligence claims. They may also take the view that, in strictly clinical matters, the practice manager should not have the same right to vote. Either way the deed must be updated on or before the date the PM becomes a partner - otherwise the old deed will not apply; it won't bind the practice manager and it will cease to apply to the other partners too.
We can of course assist with making the necessary amendments to the partnership deed and would be more than happy to support your practice.
On 4 July the DfE issued the final version of Working Together to Safeguard Children (Working Together 2018) which applies to all organisations with functions relating to children across England from 29 June 2018.
The new guidance follows the 2017 government consultation on proposed changes to the March 2015 guidance of the same name and the subsequent draft and has principally been issued to reflect the legislative changes introduced by the Children and Social Work Act 2017. From 29 June 2018, local authority areas must begin their transition from Local Safeguarding Childrens' Boards to Safeguarding Partner and Child Death Review Partner arrangements. This must be completed by 29 September 2019.
Most of the proposed changes to Working Together have been implemented as anticipated (including personal responsibility for information-sharing and a focus on wider contextual issues), but the new guidance also introduces a number of additional changes. It specifically cross-refers to the wider charity law safeguarding duties regulated by the Charity Commission and now expressly requires all voluntary, charity, social enterprise and faith-based or private sector organisations (including sports organisations) which work with children to work with safeguarding partners and to have policies in place to safeguard and protect children from harm.
The new guidance is some 112 pages in length and we are carrying out a detailed review of this and the updated advice on information-sharing which was issued on the same day. Compliance Toolkit subscribers will receive information next month on steps required as a consequence of the new guidance and we will update all our materials to ensure that they are compliant and provide a summary of safeguarding changes for schools in time for Inset.
We also expect the relevant sections in the new statutory guidance, Keeping Children Safe in Education 2018 to be updated before its implementation date of 3 September.