Education Q&A: 19th January 2023

Ruth Rule-Mullen
Ruth Rule-Mullen

Published: January 24th, 2023

8 min

Please see below for a summary of the questions answered by Ruth Rule-Mullen and James Barron (Education, Employment), Stephen McArdle (Dispute Resolution), Gemma Duxbury and Laura Rae (Governance, Procurement and Information) and Catherine Kennedy (Property) at our Education Q&A on 19th January 2023.

HOLIDAY PAY

Harpur Trust v Brazel

  1. Can you provide an overview of the Harpur Trust v Brazel decision and its implications?

There are two fundamental impacts of the Harpur Trust v Brazel ruling:

A)Part-year workers who are employed on a year-round contract are entitled to 5.6 weeks pay that is not pro-rated

This means that anyone employed throughout the year is entitled to 5.6 weeks of holiday pay and can't be pro-rated, regardless of whether they work full-time or only part of the year e.g. invigilators.

Please note that part-time workers are not necessarily part-year workers. For example, if you have a member of staff on a permanent contract that works 3 days every week, all year, they are part-time and their 5.6 weeks of holiday pay can be pro-rated.

B)The way that holiday pay is calculated for those workers

Following the decision, holiday pay for part-year workers is now calculated by reference to the hours worked over a 52-week average. This is the 'calendar method'.

The starting point is to work out their average weekly hours using the 52 weeks prior to the date you make the calculation, however you should discount any weeks not worked and can go back to a total of 104 weeks if necessary.

To calculate the holiday pay, use this formula: average weekly hours x 5.6 weeks x hourly rate. This will be the holiday pay entitlement you are bound to give that person.

2. What impact will the government consultation paper have?

To address some of the concerns regarding the decision, the government have announced a consultation paper to try and understand the implications of the judgment on different sectors including those with complex contractual arrangements, such as agency workers.

The suggestion within the consultation paper to remedy this situation is to amend the calculation so that the reference period will also include weeks where the employee hasn't worked.

This does not mean that this will be implemented, but our advice at present is to firstly get involved in the consultation if you can, and also to perhaps wait until we know the outcome of the consultation before taking any drastic action, as the circumstances may well change again.

3. Do we need to start calculating back pay?

Our advice is to undertake an audit of your staff members so that you are able to fully understand your position and can then assess the next steps accordingly, bearing in mind the upcoming consultation as advised.

Please note, however, that anyone seeking to claim for lost holiday pay must bring their claim within 3 months from the last deduction.

4. What is the best way to employ those such as invigilators?

As advised, we would recommend waiting for the outcome of the consultation paper before making any drastic changes such as changing the way part-year workers are employed.

However, if the decision remains as it currently is, it would be worth considering whether you are able to use self-employed workers or employ workers on fixed term contracts instead.

It is important to consider how these changes may affect you in other ways, such as your retention rates or recruitment capabilities, particularly in light of the fact that invigilators can often be hard to secure.

Other holiday pay issues

5.As part of the 2022 NJC pay agreement, all NJC employees have been awarded an additional day of annual leave. Do contracts need amending to reflect this?

Yes, we would recommend that contracts are amended to reflect this.

6. What is the position with additional bank holidays (such as the King's coronation) for part-time workers who don't work on a Monday?

The position is, as normal, that you pro-rate their entitlement for the bank holidays. The worker can then use this time as holiday on another day. Please note that if their pro-rated entitlement is greater than half a day, you are obliged to round this up to the full day.

STRIKE ACTION

The government has issued guidance on 'handling strike action in schools' which we would strongly recommend that you read. It can be found here: Handling strike action in schools (publishing.service.gov.uk).

7. Who is allowed to strike in the upcoming strike action?

The NEU had a successful ballot for strike action in February and March 2023 and were the only union to do so.

The NEU ballot was only successful for teaching staff and does not include support staff. Therefore, any teacher that is a member of the NEU can strike in the upcoming strike however support staff cannot, and it would be unlawful for them to do so.

Please note that teachers who are not members of any union can also take part in the strike and have the same protections as those who are part of the NEU. However, if someone is part of a different union, for example the NASUWT, it will be unlawful for them to strike and action can be taken against them.

In any event you will need to review the formal notice from the union.

8. How do we find out which teachers are going on strike?

Ultimately, you cannot compel your staff to tell you if they are participating in the strike. It is likely that the NEU will advise the employer as to the total number of their teaching staff that will be involved in the strike, and it is important to review the notice you receive. Please bear in mind that the notice will be sent to the employer, and therefore if you are a maintained school this will be sent to the local authority.

Nevertheless, we would advise that you try and communicate with staff to try and understand what position you are in and therefore how to prepare. It is however extremely important to approach this in the right way. We would not recommend anything that could be interpreted by staff as intimidation, for example one to one discussions. We would also recommend that the communication is put in writing so that you are able to evidence it.

9. What notice does the NEU have to provide?

Section 8 of the Trade Union Act 2016 provides that a trade union must provide an employer with 14 days' notice of industrial action, unless the employer has agreed to 7 days' notice. The advice on gov.uk says a minimum of 7 days and does not reflect accurately the position outlined in the legislation.

10. What can we do about cover?

Firstly, try and ascertain what level of cover you are going to need, and we refer you to question 8 above in this regard.

You are now allowed to use temporary cover for strike action, however, in practice you may find that agencies are uncooperative and therefore securing cover may be more difficult than it seems. We would therefore recommend that if you directly employ cover staff, they are your first port of call.

With regards to asking TAs to cover classes, if the TA is not part of the strike, they can be asked to provide cover if it is within their contractual requirements to do so and you don't have a legal requirement to have a qualified teacher teaching the class.

Please bear in mind that there is no requirement to cover the curriculum on strike days and therefore if you are short on numbers, you can take measures such as grouping pupils together.

11. What do we do if staff don't turn up and we don't know if they are striking?

If a member of staff has not reported for work and their absence is not accounted for, we would recommend that you act as you normally would - reach out to the teacher to check on their welfare and whereabouts.

Please refer to question 7 above regarding who is allowed to strike. Anyone who is unlawfully striking can have action taken against them.

12. How do we handle picket lines?

In 2017, the government issued a 'Code of Practice on Picketing' which can be found here: Code_of_Practice_on_Picketing.pdf (publishing.service.gov.uk) and we suggest that you review this ahead of the strike.

It is important to bear in mind that picketing should be a peaceful protest and you should ensure that you have supervisor on hand to observe and take note of any unlawful action.

Those who choose to attend the picket line have to do so as their own place of work and they cannot use violence or aggression to stop anyone from going into work.

EX-EMPLOYEES AND SCHOOL RESOURCES

13. A member of staff has recently left the school and is advertising a resource for sale that was made at the school and has the school's logo on it. Where do we stand?

If the outgoing member of staff was employed by the school and the resource was produced at and for the school as part of the role of the outgoing member of staff whilst employed, then it is almost certainly the case that the resource is owned by the school as its property. Therefore, unless the school has given the ex-employee permission to use and sell the resource in question, then they are not permitted to use or sell it.

Furthermore, as the resource has the school's logo on it, it may also be the case that there is an element of intellectual property protection. IP relates to intangible property right for things like ideas, inventions and logos. It will almost certainly be the case that the ex-employee is not entitled to use or sell an item which has the school logo on it. The school's reputation may also be jeopardised by the (mis)use of its logo without permission.

We would suggest that your first course of action should be to write to the ex-employee to set out the position, ask them to stop using and advertising for sale the resource and to return it to the school. You might also ask them to confirm they do not retain any other school property as well.

You might also look at the employment contract of the ex-employee as there maybe obligations in that that kick-in post termination relating to the return of employer's property.

SATS AND MATS

14. Do we need to be considering becoming a SAT or MAT?

Over half of schools in this country are now under the academy landscape and in September 2022 this country had 10,000 academies., The Department for Education (DfE) is encouraging a move towards Multi-Academy Trusts (MATs). They are encouraging Single Academy Trust's (SATs) to create or join a MAT and will no longer agree to the creation of SATs. Previously it appeared that if a SAT was working well, it could remain as it was, but that message seems to now be changing and the push is for MATs to be put in place and used.

Even though the Schools Bill was recently pulled, the DfE have made it very clear that the Schools Bill is completely different to the white paper and is not an excuse for not proceeding with the academy schools plan. The white paper has not gone anywhere and even Labour have confirmed that they will not reverse or stop the plan for academisation.

So, moving forward you either need to be included in the formation of a MAT or to join an existing MAT.

It is more favourable to be included in the formation of a new MAT, as then you are involved in the creation of all of the new policies and procedures governing the MAT and its schools. If you join an existing MAT, they have already been created and you have to follow what is already in place. By being involved from a MAT's creation, you form those policies and procedures and create the culture which fits your school.

As many MATs have already been formed, if you choose to create a new MAT as opposed to joining one, you will need a compelling argument to support your decision in order to evidence to the DfE that you have good reason as to why you are not joining an existing MAT. The DfE have now started to ask whether or not any existing MATs have been considered and are suitable for you to join as they do not want or need too many MATs in one area. To create a new MAT, you will need to evidence to the DfE why there are no suitable trusts for you to join and provide a full case to try and gain their support in the creation of any new MAT.

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