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Education Q&A - 27 April 2023

In light of the ruling in Harpur Trust v Brazel, what should schools be doing with holiday pay for term time workers?

The situation with the Harpur Trust case concerns the holiday pay of a part year worker. Now this is very different from being a part time worker, although they sound similar, they are not. In terms of part year workers, we are talking about invigilators and similar individuals who only work for certain weeks of the year, not somebody who works all year on a part time basis.

The crux of the case was whether or not employers could apply the pro-rata principle when it came to holiday pay for these types of workers. For part time workers their entitlement is governed by the amout of time they work. The case of Harpur Trust basically determined that part year workers are still entitled to the same holiday entitlement as a full-time worker. So, for example, if you are an invigilator, only working for 6 weeks of the year, you are still entitled to 5.6 weeks of holiday, the same as a full-time worker. That was the decision made in the case, there is currently a consultation ongoing, but we haven't had the outcome of this yet.

What we have had in the meantime is many different thoughts around the case and its decision. One of them is really to determine whether you should be adjusting holiday pay now. Many schools have already done this, whereas others are waiting to see if the consultation changes anything. I think if you haven't already done so, have a look at this. Many schools have been completing audits to establish what needs changed and what the potential cost to do so will be. If you have already applied the Harpur Trust calculation this will already limit your risk around any future claims.

It is really about taking a pragmatic view based on what your position is.

How do we know that we are paying the right amount?

Employers need to use a specific calculation. It will depend on what hours the individual is working, how often they are working, and it will be based on their pay. If workers are owed 5.6 weeks' pay, it is pay reflective of what that employee's normal working week pay is or what the contract states. So, if an invigilator gets paid £1000 a week, the calculation would be 5.6 Weeks x £1000. This can be trickier where there are different allowances.

If you are struggling with the calculation and want a second opinion, get in contact with us. It is a tricky area of law, and this case hasn't made it any easier.

Our Invigilators are being paid an hourly rate and a cash amount with no holiday pay included, they don't have a contract, they are paid as casual and when they work. We also have other site staff who are under the same casual arrangement and get paid at the 12.07% rate. What should we do?

Even if invigilators do not have a contract and are paid on casual basis, the difficulty is they are still workers for the purpose of the legislation on holiday pay and therefore are still entitled to holiday pay. We have talked with some schools about moving invigilators to a self-employed type basis so they aren't entitled to holiday pay but this comes with its own issues. The difficulty is invigilators were specifically singled out in the case of Harpur Trust v Brazel so if they are not being paid holiday pay they can bring a claim. We talked about pragmatic situations, and one of the ways to deal with this is to prepare for this claim to come, look at the cost of a potential claim. Another way is to look at it and look at paying in a way that would be right to pay under Harpur Trust.

If you are using the 12.07%, it doesn't necessarily track properly and ensure compliance with the legislation. The problem in this case was ACAS had given guidance and it was a widely used thing to pay 12.07% but the issue was, in Brazel's case it did not equate to 5.6 weeks entitlement which is what the employee is owed under the working time regulation.

In terms of what action to take, you can look at what the 12.07% works out at, and then compare this to the 5.6 weeks. If these are the same, you are fine. If not, you need to make sure you are making a payment. It isn't unusual for people to look at casual workers pay at a particular point of the year and calculate back. The regulations do say we can calculate back 52 weeks in most circumstances and in some circumstances can go back to 104 weeks to calculate the pay that will be the 5.6 weeks holiday. It comes down to what is the amount of pay x 5.6 weeks and does it equate to the 12.07% you have been paying.

We are due to take on our first apprentice and will be paying them the apprentice hourly rate, they will be working full time, 37 hours on a term time only basis. We can calculate basic salary, weekly hours x rate x 38 weeks but how do I calculate his holiday pay, do I add 5.6 weeks onto his annual salary or do I pro rate?

Well, he is not a part time worker so you can't pro rate. What you will need to do is add the 5.6 weeks on. He will be entitled to the additional 5.6 weeks' pay as he would be entitled to anything else. That is assuming that during those 38 weeks, there are no breaks, no holidays, so you would add 5.6 weeks on.

Essentially calculate 5.6 weeks x hourly rate and that would be what that statutory holiday pay would be. You then just need to consider if there is any other contractual pay. I know under Burgundy book/green book certain elements have to be applied to teachers and support staff, not necessarily applicable to apprentices, but you would need to check this depending on what type of staff member they are going to be.

If they are taking school holidays in this time, they are entitled to 5.6 weeks statutory pay so that would need to be added on.

The government has announced a review of relationship and sex education in schools, what should we expect?

I think we need to go back a few stages to what has been happening, as it was only in the last month that this was announced.

Basically, one of the heads of Ofsted made a comment to the government expressing concerns about what was considered explicit in sex education lessons. It seems that this has come from a very few reports but of quite a dramatic nature. The types of things that had been reported as concerns were children being taught that there were 100 genders, being taught about oral sex and one particular academy utilising some material from a transgender group called The Gender Unicorn in order to discuss gender identity and gender expression. This material considered identification of gender as male, female and other. Within other there were multiple genders people may identify as including agender, bigender, genderfluid transgender, genderqueer, non-binary etc. The Ofsted inspector said there was no basis, in her words, no basis in any reputable scientific biological explanation for this type of sex education.

The other concerns had come from the current guidance. The current guidance was drawn up in 2019 in conjunction with stonewall LGBT group which included a requirement to teach or at least discuss gender identity, but it was felt this was extreme.

The other complaints seem to have come from parents around drag queen story hour. One was from a story hour with 11-year-old children. There were several concerns from parents of different socio-political backgrounds, all having different opinions on the level of relationship and sex education that was being given.

What has happened now is that the government has escalated this to a full review. The secretary of state for the DfE has sent out a letter, this should have already been received, reminding schools of their specific requirement for schools to have a sex education and relationships policy, and reminding them this should be created in consultation with parents. Now this is more difficult to do the bigger the institution you are.

The current situation around gender identity is extremely complex and lots of parents will have different opinions. The current guidance addresses what should be taught but focuses more on the general topics that should be taught rather than specifics, and doesn't limit what should be taught or specify what shouldn't be taught, and it doesn't give any age range. Now many people have different opinions on this, some people believe it should be taught early whereas others think it shouldn't be taught at all and it comes down to each institution and the background you come from.

There is new guidance coming out for the summer term, specifically on how to respond to children who are questioning their gender identity. The guidance will be how to respond to these pupils and what to do. The new statutory guidance on relationship and health education, the government has said it will be coming out in the coming months. We hope this will be out in summer ready for the new term in September. This again will not be definitive guidance; it will be statutory guidance which will go out for public consultation and be concluded by the end of the year.

So in terms of what to expect look out for the summer term guidance on gender identity. This will be helpful certainly in dealing with individuals questioning their gender identity. Keep an eye on the statutory guidance coming out in the coming months. Keep an eye on the DfE website as the government consultation may whip by without many people knowing about it and I believe many institutions and school leaders will want to respond to this.

In terms of what to expect the guidance the government have suggested they will advise on how to put in place clear safeguards to protect pupils being taught contested and potentially damaging concepts, introducing age ratings, setting out what is to be appropriately taught at what age and to prevent children being taught concepts they are too young to understand. So, it is going to be a lot more restrictive.

At the minute advice is to keep an eye out for these developing matters and of course keep an eye out for the new guidance.

Where are we with Single academy trusts and what do the future plans look like?

There is still the feeling out there that many are going to sit back and wait and see what happens. After the government White Paper things gained a bit of momentum and people started to get the ball moving, but there are still some schools out there thinking this isn't going to happen to us.

We are at the minute dealing with a lot of conversions of many Single Academy Trusts (SAT) to Multi Academy Trusts (MAT) as this is a process you can go through to convert your trust, if you wanted to do that. The DfE have said there will be no more SATs as many people are aware now. What we have seen so far they're not scrutinising SATs that much at the moment, so long as they are doing well and performing how they should be. The consensus is however that SATs are not the way to go but that MATs are the way forward. I do think this is going to carry on until the spotlight does once again fall back on SATs. So I think you should be considering your options, putting the feelers out, perhaps consider converting to a MAT but be mindful you do need to have a business plan and explain what this will look like and how you will make it work.

Some seem to think that if Labour gets in the law will change but this is not the case. We are too far down the line. Even if Labour do get in they will continue with the MAT route, they have confirmed this. 50% of our schools are MAT. It would cost too much money to back track on this now. They are however going to extend the original deadline from the White Paper which was 2030, but it is still going to happen and is still going to be there. If you are a SAT you need to consider converting to MAT.

Another thing to be mindful of is the DfE seem to be being a little bit awkward on the creation of a new MAT. It does again depend on your business case. You must show why you would not be willing to join a particular MAT and why you would be different. If you are thinking about going down this route and not joining a trust that is already there, you need to be getting everything in place, making sure you have your business plan, policies and procedures and vision and values, particularly in MAT saturated areas.

So yes it is still moving forward, the push is for MATs. So you do need to be trying to move it forward, particularly if you are a SAT.

When is a protected conversation or a without prejudice conversation not appropriate and what are the risk?

According to legislation (s.111 of the the Employment Rights Act) employers have the ability to have a conversation with somebody when we think it might be appropriate to bring an employment relationship to an end.

This is only a protected conversation in relation to what is called an unfair dismissal claim. Essentially what this means is you can have this conversation, so long as it is done in a particular way. There is guidance at ACAS on how this needs to be done and you can reach out to us at Forbes, but essentially it needs to be done in a way that the individual cannot say the conduct of the meeting was inappropriate or in any way discriminatory against them. So you have to approach this conversation in a particular way.

There are certain things you need to set out in writing and if you are making an offer for an individual to leave their employment on the back of this conversation and you must give a period of 10 calendar days to consider this offer before taking any other action. So this is where you may have someone who is not performing, you're going through a performance process, you may pause the process whilst this conversation is ongoing that is fine, but it is only protected in a claim for unfair dismissal.

This means that if that person brings a claim that conversation cannot be discussed in front of the judge in tribunal. So if it is referenced in a hearing bundle it needs to be taken out, likewise if it is in someone's statement it would need taking out and the judge cannot know about it.

When it is not appropriate is, according to the legislation, when there is a claim for potential discrimination. This means if you were to have such a conversation and later face a discrimination claim, simply that conversation is not protected under the legislation. So effectively a Tribunal has to ignore a protected conversation for Unfair Dismissal, but doesn't have to ignore it for discrimination claim. The other thing to be mindful of is if you behave inappropriately in that meeting, the judge will have to hear about the conduct in that meeting to determine whether this conversation is admissible in the proceedings of unfair dismissal. For that reason in some cases rather than a 'protected conversation' under the legislation you may be able to have a genuine 'without prejudice' conversation as an alternative as there can sometimes be a difference between the two.

However this all sounds very confusing. What we think is if you need to have a conversation with an employee to see if they would rather exit their employment rather than go through a particular process, then yes you should follow the guidance on protected conversations but I don't think there is huge risk in having these conversations even if a Tribunal has to know about it. Tribunals are pragmatic and know you will have these conversations to alleviate the pressure on you to continue through a lengthy process, to utilise funds in the best way to not prolong that process. As long as this is agreed with the employee and it is done in the right way, I don't have any major concerns in you having these conversations at any time.

All we would say is if you are thinking of going down this route, make sure you seek advice, make sure you are prepared and be careful not to step outside the lines in terms of conduct.

Yes there are some risks, but only really if the conversation goes the wrong way .I would say it's better to have the conversation than to not have the conversation. What you do have to remember is, and this is really important, is if you pause a disciplinary process, capability process or grievance process because of Without prejudice discussions, you cannot then rely on that information in the tribunal. So what you would need to do is, you need to write to the employee in an open letter saying you have agreed to pause the process whilst we have other discussions conversation. Otherwise it could look like you weren't doing anything for 3 weeks.

When it's a toxic employee bringing other staff down is this a protected conversation because there is no conflict or does this constitute conflict so it is a without prejudice?

The protected conversation is a technical name for the conversation I referred to above in relation to Unfair dismissal. This can still be called a without prejudice conversation because what we mean by without prejudice is that it is one we don't want to refer to and one we don't want putting in front of the judge. They are very similar. The only difference is the protection to an employer when having a protected conversation only applies to unfair dismissal scenarios.

The answer depends on what you are going to do with your toxic employee. It may be a protected conversations as you could be going down the disciplinary. It may be it is a capability situation and again you may end up going down a process which would bring their employment to an end. A protected conversation is when you are looking to go down a process and bring a relationship to an end.

If none of those apply and you simply want to have a conversation because relationships are fruaght and difficult to repair then yes it could be without prejudice, but they are very similar. It does depend on the circumstances. The point about conflict is there needs to be some kind of dispute in the background to have the without prejudice conversation. With the protected conversation there doesn't have to be this dispute, but remember they can only be protected in terms of unfair dismissal challenges. If the reason for their behaviour was because of disability, such as their actions would be because of anxiety etc - then again this may not be protected as they may argue disability is affecting them and discrimination is the way you are treating them. It is important to get advice on the situations as they evolve.

So essentially you can use both, but just be very careful on how you go about it.

We have got a difficult employee to work with and are losing good staff because of them. Is there anything else that can be done?

Under unfair dismissal you can dismiss for a fair reason. Some of these are standard such as conduct and capability but there is one called some other substantial reason, referred to as SOSR. This is for circumstances where the issue or concern doesn't squarely fit with misconduct or capability, or one of the other potentially fair reasons for dismissal. The difficult employee may not have committed misconduct, it may just be they are not getting on with team, and there is a breakdown in relationship. This can fit into the fair reason of some other substantial reason, so long as it is substantial. If you can move the person to another team etc this would need to be considered first as an alternative to dismissal and you would need some good evidence as to why staff are finding it difficult, but it is possible to use this reason if staff are leaving, you would need to conduct exit interviews to gather this evidence that could be utilised under this.

What is the guidance regarding retention of documents used for DBS checks. We keep copies of anything that we also use for right to work checks, passports etc but what about other docs used for DBS checks such as bank statements, utility bills once the single central record has been updated?

Guidance says you obtain DBS for specific circumstances, and you are supposed to take the information out of that and put it in your systems and keep what you need. But then you should after no longer than 6 months destroy the original DBS information, you shouldn't be holding it. So what you should be doing is taking out the relevant information, making sure it is in the central record, that its in your record and then getting rid of the original.

With regards to utility bills and passports this doesn't just fall under the DBS umbrella. It would fall under the special category data, so I would be referring you to your policies but also advising you that in relation to keeping and maintaining documents you should only keep them for as long as is necessary under the legislation. For current employees you could keep this for a period of time but again would need to justify why you are holding it.

DBS refers specifically to recruitment. Best thing to do is take out all the information you need from these documents, making sure its recorded where it needs to be and then just get rid of it.

In regards to passports and everything this falls under GDPR side of things and you can justify why you hold it. But again if you don't need it I would advise against holding it.

Do we not need to keep copies of passports for right to work checks?

In those circumstances, like I said before providing you have a justification for holding this data, then it will not be an issue. For a right to work its quite clear that you need to retain that documentation to prove this individual has the right to work for you. Also keep an eye on the dates of that passport and whether the check needs to be updated.

After the employee has left your employment you can keep it for 2 years, but then you need to get rid of it. It is specifically in relation to DBS they say should get rid of it after 6 months as you should be taking out the information required and storing this and then discarding it.

The rest of it falls under GDPR so it required you to have a justification for keeping this document.

If we keep all leavers files for 6 years as per our retention policy, does that mean after 2 years we need to go through and remove any copy documents?

In relation to this kind of question, a lot of the information available is guidance only. Most people say keep records for 6 years and this is because of the limitations act where effectively people can bring a case against a school within 6 years. So most people say they will keep documents for 6 years.

Now there are all different types of guidance for different documents. So the guidance for right to work checks is you get rid of the passport 2 years after the employee has left because you don't need it anymore.

So at a firm of solicitors, when we are closing files, we have to take different things into consideration when deciding how long we keep documents for. I think generally the rule is keep documents for 6 years as cases could be brought in this time. Guidance is then different for tax records. For tax records have to keep documents for 3 years for financial purposes.

I think the best thing to do is stick with the policy you have in place, keep it for the 6 year period and say it's in line with the trusts policy, but there is different guidance out there that says you can dispose of it earlier. However if you do an annual check every 12 months and think you can get rid of it then do. Otherwise stick with your 6 years in the policy.

For more information contact Ashleigh Dibb in our Education department via email or phone on 01772 220250. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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