Be ready for the year ahead
PUBLISHED: 16:14 30 August 2012 | UPDATED: 21:48 20 February 2013
Schools face new – and some fraught – legal challenges in 2013. Alice Reeve, from Rickerbys education team looks at what the year holds for schools.
Be ready for the year ahead
Schools face new and some fraught legal challenges in 2013. Alice Reeve, from Rickerbys education team looks at what the year holds for schools.
Every year we see a raft of new guidelines and legislation and 2013 will be no exception.To find our way through the red tape maze we asked Alice Reeve, who heads the education team at law firm Rickerbys, to highlight the issues schools should be aware of.
Changes in the Equality Act, which come into effect this month, may affect independent schools and how they support students with disabilities.
In the past schools were expected to make reasonable adjustments to support disabled pupils without passing on the costs incurred to the parents. The changes mean that schools will also be expected to provide a reasonable level of auxiliary services for disabled pupils at no cost to the parent.
Schools need to look at what additional services a child needs and consider carefully whether the extra cost should be absorbed or handed on to the parents, said Alice. Where schools intend to pass on costs these need to be discussed with parents and clearly set out in contractual documentation.
Self-employed or member of staff?
HM Revenue and Customs is expected to delve into the employment status of self-employed staff at schools. It is, Alice explains, examining whether the staff are truly self employed or are treated in such a way that they are considered to be a member of staff.
You need to be sure that the school and the person in question understand the employment relationship and that you have good paperwork to prove that, said Alice. It can be a difficult area in schools where someone is self-employed because schools want to be able to control that service and the quality of the service. It is also difficult for staff to send someone in their place as a result of CRB and other requirements. All of these factors can be used as indicators that the member of staff is actually an employee.
Perks of the job
HM Revenue and Customs is also expected to crack down on the provision of accommodation for staff. In other words, if the accommodation is not intrinsic to performing the job, then the accommodation is seen as a taxable benefit.
If you offer accommodation that is not intrinsic or essential to the performance of a job but use it to attract staff then it could be a taxable benefit, says Alice. Schools need to undertake an audit of their accommodation and where it is needed for staff for the essential or better performance and ensure this is clearly reflected in the contractual paperwork. Other staff should be appointed on appropriate tenancy agreements and schools need to seek advice on the value of the accommodation.
Performance management and Protected conversations
New regulations come into force this month on performance management. These apply to maintained schools and give them more flexibility in the manner in which they carry out performance reviews. The regulations are also intended to make it easier for schools to address underperformance by reducing the length of time that schools need to monitor concerns and also reducing the time spent addressing matters informally. These regulations should see all schools reviewing the way in which they manage the performance of staff and address concerns.
Another change which is anticipated this year will enable schools to have protected conversations with staff, whereby if the member of staff is underperforming, an arrangement can be made for that employee to leave immediately rather than go through a lengthy review. Both sides will need to agree and this will be formally documented.
The unions are concerned that schools will find it easier to get rid of underperforming staff, says Alice.
But if a member of staff is not up to the job is it really in their or pupils interests for them to continue for another year while you go through the process? This change to have a frank conversation and be able to discuss severance will give schools a sense of safety without prejudice when dealing with under performance.
Independent School Standards & Exclusions
New Independent School Standard Regulations are expected in September. The key change is the need for schools to promote principles which encourage pupils to respect fundamental British values, including democracy, the rule of law, individual liberty and mutual respect, and tolerance of those with different faiths and beliefs and ensure that political issues are presented in a balanced way.
There is also a focus on the procedures adopted for exclusion and if there needs to be a different process to allow pupils to challenge exclusions. When a student is excluded it remains on their file and can affect their record where that child goes to school in the future.
At present, in independent schools, an exclusion decision is made by the Head and there is then an opportunity for a Governors Review Panel. The scope of this is limited, while a group of governors can examine the heads decision and ensure this was in line with the Schools policies, it does not rehear or reconsider the case of exclusion. In many independent schools pupils are also withdrawn by the parents at the request of the School as a more positive alternative to exclusion. In these cases there is no right for this to be considered by Governors.
Parents are starting to push for the right to challenge as exclusions have such an impact on their childs future. They are demanding more rights in this area.
Alice says the Rickerbys team is seeing more legal challenging by parents over exclusions. Previously you would buy into the school and its ethos and accept the decision of the head. Now we are seeing more and more challenges which is time consuming for the school.
The days of simply saying no to social media for staff and pupils are over. Schools cannot simply ban it. Instead schools need to develop parameters and train staff and pupils so that they understand the policies and what can happen, says Alice.
The Rickerbys team helps schools develop a social media policy although we are also contacted when things have gone wrong.
Inappropriate use of social media can cause long-term damage to a schools reputation, whether it is a member of staff friending a pupil on Facebook or a member of staff posting embarrassing pictures from their hen do.
People are far more relaxed on social media and do things they would never do in real life. Social media makes it easy for naive or unthinking staff to build relationships that they would never dream of doing face to face.
A blanket ban, says Alice, misses the opportunities that Facebook and Twitter have to offer. Social media can be a way to promote the school and to engage parents and pupils.
Schools also have to consider their policies on cyber bullying, which is on the rise. Schools should tackle it as they would bullying and deal with it quickly and effectively, said Alice.
By providing a social policy and training staff so they understand what the parameters are and why they are there, enables schools to harness the power of social media. The school must also have someone who is monitoring social media so as to quickly deal with issues before they spiral out of control.
It is about making sure staff understand the rules and the disciplinary procedure which follows if they are in breach and ensuring there is a consistent approach, whether it is issues arising from electronic media or more traditional media.
2012 is supposed to be a period of reduced red tape but for those involved in schools the amount of legal change is significant and whilst many of the changes will prove helpful for schools they demonstrate that we are all operating in an increasingly litigious environment.
For further information or assistance, please contact Alice Reeve, Partner and Head of the Education Team at Rickerbys, on 01242 246431 or email Alice on email@example.com
When is living on site a requirement of the job?
The test which needs to be satisfied for accommodation to be provided for duties is either;
If it is essential to the performance of duties that the employee should live in the particular house, or in a house within a closely defined perimeter; or
Where occupation of the particular house is not essential for the performance of the employees duties, but by doing so he can better perform them to a material degree, and his contract of employment requires him to reside there.
In both cases this should be supported by the job description and also the contract of employment. The employee should be given a Service Occupancy agreement to reside in the property which ceases automatically when their employment in that post comes to an end.
Where schools are asserting that residential rights are necessary for the better performance of their duties then they should have some evidence to support this including call out logs if it is for pastoral care or security reasons.
Key factors for determining self-employed status:
Is there a contract in place?
Does this look like an employment contract or contract for provision of services?
Is there an obligation for the member of staff to be offered work and to do this?
Do they need to undertake work personally?
Are they subject to the control of the School in the way they undertake work?
Are they subject to the Schools normal employment policies and procedures?
Do they have their own business providing services to a number of schools?
Do they provide their own equipment?
Do they take on the financial risk?
Are they paid when on sick leave or holiday?
Are they paid by way of invoice rather than through the payroll?