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Employment Update

Fri 01 Sep 2017

New STPCD, tribunal fees, absence insurance, lessons from the Trojan Horse hearings, bereavement leave and the new National Education Union.


The Government has published the School Teachers’ Pay Review Body’s 27th Report on the teachers’ pay award for 2017-18. The changes primarily show the changes to pay based on:

  • A 2% uplift to the minimum and maximum of the main pay range (MPR);
  • A 1% uplift to the minima and maxima of the upper pay range (UPR), the unqualified teacher pay range and the leading practitioner pay range;
  • A 1% uplift to the minima and maxima of the leadership group pay range and all head teacher group pay ranges; and,
  • A 1% uplift to the minima and maxima of the Teaching and Learning Responsibility (TLR) and Special Educational Needs (SEN) allowance ranges.

The other changes relate salary sacrifice, and the removal of Chartered London Teacher status.

The key issue is the recommendation to increase the minimum and maximum of the main range by 2%, while the recommendation for all other ranges in to increase then by 1%. Most schools have adopted the M1 – M6 scale for the Main Pay Range. This will mean that whilst the value of M1 will automatically rise by 2% there will need to be a policy decision by each employer whether to raise the values of M2-M6 by 2% or whether to create a new M7 point. This last issue was previously encountered in 2015 when the Main Pay Range maximum was raised by 2% - some Schools increased M6 by 2%, some increased M6 by 1% and some created M6a with a 1% rise and M6b at the 2% rise. Governors and Trustees will need to review their Teacher Pay Policy in September and October 2017 in light of the budgetary position.

In line with the recommendations from the report the DfE has now issued the new 2017 School Teachers’ Pay and Conditions Document (STPCD).

Tribunal Fees

In a decision described by commentators as the most significant employment law judgement in a generation, the Supreme Court has held that the employment tribunal fee regime is unlawful.

The Supreme Court’s decision was that the fees prevented access to justice, for two reasons – firstly because they could not be reasonably afforded by households on low to middle incomes, and secondly because in some circumstances they rendered it futile or irrational to bring a claim (in that the fee outweighed the potential value of the claim). The Court was at pains to point out that access to justice is a constitutional right, and that the just resolution of employment disputes benefits not just the parties to that dispute, but the population at large.

The Supreme Court further found that the fee regime was unlawful under EU law (which post-Brexit will only be of academic interest), and that the higher fee charged for some types of claim was discriminatory on ground of sex.

The effect of the judgement is to remove the fee regime at a stroke. The Ministry of Justice will be refunding all fees which have been paid since the scheme was introduced in 2013.

Justice Minister Dominic Raab has indicated that the Government will “further consider the detail of the judgement”, so it’s not clear whether any new fee regime will be introduced. In any event, the judgement of the Supreme Court makes it clear that the level of any new fees would need to carefully considered and subject to evidential justification. They would also need to be either considerably lower than the current fees, or subject to a very much broader remission scheme.

In the meantime, there are three issues of which schools and academies should be aware:

  • All fees will be refunded. So if you have paid an employee’s Tribunal fee, either under a costs order having been unsuccessful at hearing, or as part of an agreed settlement, that fee ought to be refunded. It is not clear yet how the refund mechanism will operate. It may be that in some circumstances the fee will be refunded directly to the employer, although it’s more likely that the fee will be refunded to the claimant, and the employer will have to recover it from the claimant. Further details should emerge in due course.
  • Since fees were introduced, there has been a significant long-term reduction in the number of claims being brought – around 70%. There were undoubtedly other factors in play, such as the introduction of ACAS Early Conciliation and the increase in the qualifying period of service for unfair dismissal claims to two years. However a significant proportion of the reduction was almost certainly attributable to employees who felt priced out of the system. Therefore it’s likely that the number of new claims will increase going forward. This should serve as a timely reminder to ensure that you have robust policies and practices in place, backed up by sensible HR advice. It’s also a good time to check your legal expenses insurance, to ensure you will be covered if claims are brought.
  • There are thousands of aggrieved employees and former employees who may now seek to argue that they were unable to bring a claim because of the fee regime, and that since the fee regime has been held to be unlawful they should now be allowed to belatedly bring their claim. These will potentially fall into three categories – those whose claims were rejected or dismissed for failure to pay the fee, those who applied unsuccessfully for a fee remission then subsequently dropped their claim, and those who never actually brought a claim. In each case, if they now bring a claim the Tribunal will have to decide whether to accept that claim outside the normal time limits (which are ordinarily strictly enforced). It appears likely that claimants in the first category will be allowed to proceed with their claims, but those in the second and third categories will be more difficult. For now, schools and academies should adopt a watching brief.

Absence insurance

We are aware of several cases recently where schools and academies have purchased absence insurance, but found themselves unable to claim on it when needed.

Insurers are not noted for suffering from excesses of generosity, so if the policy allows them to refuse cover, they will do so. Therefore it’s worth reading the policy very carefully to ensure that it covers what you expect, and that you know what is excluded. Some areas to watch out for are (and this is by no means an exhaustive list):

  • Does the policy cover stress-related absence? Some exclude this or only cover it for an extra fee.
  • Does the policy limit cover for bereavement-related absence? If so, you may be limited in what you can claim if an employee becomes ill following the stress of a bereavement. 
  • Does the policy cover you if a period of absence straddles two different school years? Some policies don’t, in which case you may find your premium increases at renewal if you want cover to continue in respect of that employee.
  • Does the policy cover maternity leave? Some policies provide that the maternity cover is paid as a lump sum when the employee returns to work, in which case you won’t be able to claim on the policy if the employee doesn’t return to work. This is presumably intended to be in line with the occupational maternity pay scheme in the Burgundy Book – but the occupational maternity pay isn’t the only cost incurred when an employee is absent, as paying for short-term cover may cost more than the employee’s normal salary.
  • Have you disclosed everything you need to disclose? Failure to disclose a diagnosis, even if the diagnosed condition hasn’t yet led to any absence, can invalidate the policy, particularly if it straddles renewal.

While absence policies are far from perfect, they are popular with schools wishing to smooth out absence cost, as even one long-term absence in a year could put a significant strain on the budget of a small school.

Given the success of the RPA, we think the time may be right for the Department for Education to consider an absence risk-pooling scheme. This ought to be more efficient, both because it could pay based on losses rather than a flat rate (as most policies do), and because there would be no profit element. From the Department’s point of view, it would give them a clearer picture of the cost of staff absence, which would assist with sector-wide workforce planning.

Trojan Horse hearings

Another widely reported story has been the collapse of the NCTL professional conduct panel hearings against five teachers formerly employed in senior leadership positions by Park View Education Trust – the so called “Trojan Horse” hearings.

The teachers concerned faced allegations relating to allowing an undue amount of religious influence in the Academies.

Towards the end of the (lengthy) hearing, it came to light that a significant number of documents held by the NCTL had not been disclosed to the teachers. The withheld material was estimated to be around 1,600 pages.

The Panel considered that it was still objectively possible for the teachers to have a fair hearing. However they went on to conclude that the proceedings should be discontinued on the basis that in the circumstances, it would offend the panel’s sense of justice and propriety to be asked to continue to hear the case against the teachers.

The circumstances were unusual and the case sits on its own facts; however it is always worth bearing in mind the importance of following a robust and fair procedure when dealing with serious allegations. We have experience of supporting schools through the most serious allegations of impropriety.

Bereavement Leave

Picking up on a manifesto commitment, the Government has supported the introduction of a new bill intended to give support to bereaved parents. This has now been published as the Parental Bereavement (Pay and Leave) Bill.

The proposed new legislation will give parents who suffer the death of a child the statutory right to paid time off to grieve. The draft bill has not yet been published so the details remain to be seen, although the Conservative Party manifesto referred to two weeks. The Department for Business, Energy and Industrial Strategy will be working with stakeholders over the summer in order to “understand better the needs of bereaved parents and employers”.

In practice, whatever is proposed is unlikely to have a significant effect on schools and academies; partly because parental bereavement is a (fortunately) relatively rare occurrence, but largely because public sector employers tend to have a fairly good track-record at supporting employees experiencing difficult personal circumstances.

In the interim, ACAS has published some good practice guidance for managing bereavement in the workplace, which can be found here:

Merger of NUT and ATL to form the National Education Union

With effect from 1 September, the National Union of Teachers and the Association of Teachers and Lecturers have merged to form a new Union, the National Education Union (“NEU”). Beyond the name, there should be very little immediate change – initially the NEU will operate two distinct sections, the ATL section and the NUT section. If you currently have both an NUT rep and an ATL rep, the NUT rep will continue to represent the NUT section of the NEU and the ATL rep will continue to represent the ATL section of the NEU. The two sections will fully merge on 1 January 2019.

The amalgamation looks, on the face of it, look like a slightly odd partnership, as the NUT has traditionally been considerably more militant than the ATL. This, together with the potential perception that the NUT is swallowing the (much smaller) ATL, may explain why 97.2% of NUT members voted in favour of the amalgamation, but only 73% of ATL members. It remains to be seen what approach the new Union takes in employee relations and industrial relations matters, both in the short term and following the full merger in 2019.

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