Education Q & A Recap May 2024

1.      Are there any tips for maternity RTW for anxious colleague?

Returning to work after maternity leave can understandably be an anxious time. One tip to help to ease this anxiety would be utilising KIT days (keeping in touch), where an individual can come back in and for example:

a)      Undertake training;

b)      Meet new members of the team; or

c)      Familiarise themselves with their surroundings.

You are generally paid for these. There is not a provision for the employee to be paid for KIT days, but these would generally be remunerated as there would be expectation by employees that these would be paid.

Alternatively, you could arrange to meet with individual generally, either at a mutual venue or at their home. It is a long time to be off and things change over this period of time.

Settling in periods. Sometimes people would like to take it steady when they return and this is something you could look to facilitate for the employee if this could be accommodated.

Discussing their return to work. You could think about who is going to speak to the person who is returning to work. A suggestion could be a colleague who they’re familiar with, someone who is particularly good at having open conversations with active listening.

Health and well-being support. If you do have any health or wellbeing support on offer (e.g. an Employee Assistance Programme), it is worthwhile mentioning those for when they return.

2.      Subject access request (SARs), when asked for records of ‘discussions’, how can this be provided or remembered?

With regards to providing information as part of a SAR, if you haven’t recorded a discussion at the time, you can’t produce this. It is much better if you do record discussions at the time so you have an accurate record of what was discussed and can be used if any issues arise in the future, but if they are not in existence, do not try to make them or recreate them. You cannot go back and create records of something has happened.

If any issues look as though they are likely to affect you in the future, for example, having the sense that there may be litigation in the future,  then you should record or write down any conversation.

Be aware, that when making a note electronically on computers for example, you can see when things were recorded which will create date stamp of its creation.

Emails do form part of disclose. If you do want to record something, you could send an email to a headteacher, supervisor, and input that you’ve had a conversation with XYZ and set it out there as a record.

You do need to be careful on what is included on an email. For example, if you send an email as an immediate reaction to an incident which may contain some choice words, when you do a trawl of emails for what is required under a DSAR, you have to disclose everything. If it is in writing, it can be produced.

To re-iterate, you cannot disclose something that does not exist. You should just admit this.

If it is a key discussion, just record it, send an email and it may never be needed, but is a good habit to get into.

3.      If an employee has been overpaid, what would be considered a reasonable time to pay this overpayment back?

Claims for unlawful deduction from wages do not apply where the purpose of the deduction is the reimbursement of the employer in respect of an overpayment of wages. If an employer discovers that such an overpayment has been made, it is open to an employer to deduct the sum overpaid from a subsequent pay packet.

EAT Case:

An individual was paid a full time wage when they were working reduced hours. To recover the money paid in error, the employer deducted 10% of her wages each month.

 A claim was lodged by the employee.

It went all the way to the EAT, where it was held that such deductions were permitted as it had been made abundantly clear to the employee what her salary would be and that the was an intelligent women who understood she was being overpaid but just decided to keep quiet about it.

Things to consider when recovering overpayments:

1.      Check your contract to see if there are any provisions in there regarding overpayments and how these may be recovered.

2.      Goodwill of your staff – whilst an employer is entitled to deduct the overpaid sum, simply taking a large sum of money out of someone’s pay may create a hostile working relationship. It is best practice for an employer to consult with an employee to make them aware of the overpayment and for an agreement to be reached about how the repayment will take place.  Any failure on the part of the employer to act fairly or reasonably in these circumstances, without having regard to the potential financial hardship that immediate repayment could cause the employee, could be considered as a fundamental breach of the implied term of mutual trust and confidence. This may result in a potential constructive dismissal claim.

3.      Act fairly and reasonably throughout the process. As the employee may have been unaware of the overpayment. What is a reasonable rate of recovery will depend on the circumstances. Also important to act promptly when you become aware of an overpayment.

4.      Tax considerations. If you as an employer have deducted PAYE or national insurance contributions from an overpayment, guidance from HMRC on “unintentional overpayments” to workers provides that employers should make adjustments to any payments due to HMRC to reflect the correct position once the employer has recovered the money from the worker.

5.      Itemised pay statements. Where an overpayment to a worker is recovered by way of a deduction from wages this must be identified on a worker’s itemised pay statement.

6.      Consistency. It is essential to ensure that any attempt to recover an overpayment should be dealt with consistently by employers to avoid breaching any other legislation (e.g discrimination). A claim could arise, if for example an employer has always overlooked overpayments in the past, but sought to recover a similar overpayment from a women who chose not the return to work following maternity leave.

7.      Reasonableness – act promptly. There is no set timescale. You need the individuals agreement to it too.

4.      If an employee keeps being off and then OH suggests a phased return, what is a reasonable about of times a school can support and sustain this. This particular member of staff has now had four in academic year.

There is not one size fits all or particular period of time. This will depend on circumstances of the individual and the school.

This is something that we would want to be querying with Occupational Health, as we would expect that if a phased return has failed on previous occasions then OH shouldn’t keep suggesting this. It would also be useful to speak with the employees themselves.

Important to be mindful that if the individual meets the definition of disability under the Equality Act 2010 there is a duty to make reasonable adjustment, which may involve a phased return, as the EAT has commented that the reasonable adjustments duty is “primarily concerned with enabling the disabled person to remain in or return to work with the employer” or “to enable disabled people to play a full part in the world of work.”

We would need to know why the phased return has failed but if the employee isn’t able to maintain attendance at work, then it would be sensible to obtain an up to date OH report where it is clearly set out what adjustments have been made, the amount of absence that the employee has had, and an understanding of if that employee will be able to maintain acceptable levels of attendance going forward.

It will depend on their condition and a consideration on what the impact is on colleagues and pupils. If they are having difficulties and/or keep going off, the school may well be able to do something about that. For example, taking the individual through capability process, which may ultimately result in the termination of their employment.

5.      General contract information by Sheroze

a.      Touching on the point regarding the overpayment. For finance, you want to keep cash flow quite tight. By way of example, there are a lot of clients with long standing agreements that haven’t been reviewed and therefore, they do not know what the outgoing is. Do not fall short on auto-renewal clauses.

b.      It is important to look at terms regularly. What we are paying and the return on this and whether it is in line with the current market.

c.      We have advised many clients to carry out audits of similar nature. It is important to look at what you pay per pupil vs. what you pay for the overheads.

6.      Annual equal pay review – are staff with more than one contract counted as two people or do I treat them as one person and merge all the information together?

This depends on the purpose of review or audit. With annual equal pay reviews, if your institutions decide to do this then you should have your own parameters.

If there is a dispute regarding equal pay by an employee, then it would be sensible to look at that each individual contract. This is because when looking at equal pay from a legal points of view, this is all about the role someone is employed to do and whether they are being paid fairly when compared with a comparator who is undertaking like work, work rated as equivalent or of equal value.

If however, the purpose of the equal pay review is for an institution to look holistically at pay and from a gender pay point of view, and looking at if an individual is paid on a comparable basis to the other sex, then it would be sensible to look at the contracts as a whole.

7.      What support is available for head teachers who are attending tribunals for places in school when the school is significantly over subscribed?

Having a relationship and forming this with the local authority and admission authority is essential to obtain support in this scenario. If you do want to enter into negotiations, you would be in a better position to ask for additional support or funding support. With regards to admissions generally, you would need to build up a relationship with the admissions authority as previously mentioned and to make sure the correct code to the admissions is followed.

Try to make sure that if you have a relationship with local authority, you are looking to achieve a solution for the community but not at the cost of the school and the pupils.

The admissions authority and those on the panel should support the head teacher.

8.      Can you explain shared parental leave and how this impacts on schools?

With SPL, we do training sessions just on this topic. Below provides a brief overview but it is worth bearing in mind that there are eligibility requirements which would need to applied in each situation, as these can be quite complex.

Parents do not have to use the SPL system. The default position on the birth of a child is that a mother has 52 weeks of maternity leave (of which 39 week is paid if they qualify for statutory maternity pay). The default position on the adoption of a child is that the primary adopter is entitled to 52 weeks of adoption leave, of which 39 weeks is paid if they qualify for statutory adoption pay.

Unless parents qualify for and opt into the SPL scheme, the child’s father (or the partner of the mother or primary adopter) will have no entitlement beyond the two weeks’ paternity leave and pay (if they qualify).

Curtailment: if parents want to utilise shared parental leave, there are eligibility requirements that are quite complex, but essentially in relation to births, where the mother is an employee she may curtail her statutory maternity leave so that she can take SPL, provided the other parent is (or has recently been in) paid work. The parents can decide how to allocate the leave entitlement between them. This is the same situation with adoption leave, where this can be curtailed.

Time for SPL: SPL is made up of 50 weeks of SPL and 37 weeks of shared parental pay, which is available for eligible parents to take or share. This is everything other than the compulsory 2 week maternity leave period or an equivalent two week period in adoption cases.

Making a request: A mother or adopter must give 8 weeks’ notice that they wish to take SPL, along with a opt in notice which is a nonbinding indication of how and when a parent intends to take the SPL, and a declaration by the other parent consenting to this proposal. A notice that requests one continuous period of SPL must be accepted by the employer. When a single notice requests two or more discontinuous periods of SPL, the employer has two weeks to accept the request, propose alternatives or refuse it. Where the employer refuses it, the employee may either choose to take the total amount of leave requested as one continuous period, or withdraw their original notice.

How can SPL be taken: A notice, that requests one continuous SPL cannot be refused my employee. An employee may serve up to three periods of leave notices. This means that they could, by serving three notices, take three discontinuous periods of leave, and the employer would have no option to refuse.

When it can be taken: SPL can be used by teachers in a way that enables them to be paid for some of the school holidays which take place whilst they are on maternity leave. As we have said, SPL can be taken in up to three consecutive blocks, with breaks in between where employees can return to work and are paid in full. Therefore, a teacher on maternity leave could curtail their maternity leave, and give 8 weeks notice of an intention to take SPL

For example: a teacher on maternity leave could give notice of at least 8 weeks before the end of the summer term, that they intend to curtail their maternity leave on the last day of the summer term. They would then be paid for the summer holidays. That teacher could then apply for their first block of SPL from the first day of the Autumn term to the last day of term before the October half term. If a teacher returns to work in the school holidays, there is an argument that they wouldn’t have to then go into work, but instead would be paid in full. If an employer asks for that person to work during the school holiday when other staff aren’t asked to do this – there is a risk this could be challenged and considered to be discriminatory.

If returning to work for school holidays, going to be tricky to ask them to do work whilst everyone else is off.

Statutory Pay: When we look at pay, the amount of statutory shared parental pay is the lower of either £184.03 (from 7 April 2024) or 90% of the normal weekly earnings of the individual claiming SSPP.

SPLIT days: there are 20 SPLIT days that can be used by each parent where they can undertake work and would expect to be paid for these.

If there is a change of government, labour have said in their new deal, they want to encourage SPL, making it more flexible. Will highlight it.

9.      Our attendance management policy includes triggers which are not pro rated for part-time staff.  We have been challenged by some full-time staff about the fairness of this.  What is your view?

We have not had this raised by clients or challenged in practice. What the full time staff are saying is if people are not working full time, when they are unwell, they may only have one or two days absence as they are not working for the remainder of the week. Therefore, for those people, they are less likely to hit the triggers for absence.

Legally speaking, part-time staff have legislation that protects them, whereas there isn’t any similar protection for full time employees.

A trigger point is there to apply consistently for all staff but these should be reviewed on a case by case basis and your actions would need to be justified.

From a part time workers perspective, they are only paid to be in work for part of week. Just because they are not reaching a trigger, does not mean they are getting preferential treatment as they are not being paid for that time.

Could someone raise discrimination? They would have to link working full time and a discrimination together, which is very unlikely to stand in an Employment Tribunal.

Check in policy that there is discretion regarding the triggers. For example, the triggers that are applied will be done so with discretion, and individual circumstances will be considered.

10.  If someone is on a fixed term contract, but has not been notified whether the contract is ending or continuing in the previous academic year, but has continued.

If an employer continues to employ the employee beyond the expiry date of the fixed term contract, it may be unclear what the terms of employment are for this period beyond the expiry date. As the contract is continuing, it is likely that the employee would be employed for an indefinite rather than a fixed term. In this case, the law will apply a reasonable notice period, to be given on either side, looking at things like the employee’s length of service and seniority. This will also be subject to the statutory minimum notice.

May be worthwhile agreeing a short extension now if there is a desire for this to continue for the short term.

If a fixed term contract is coming to an end, it is worth noting that the non-renewal of a fixed term contract amounts to a “dismissal” according to the Employment Rights Act, which means that a dismissal must be reasonable and for a fair reason if the employer wants to avoid unfair dismissal liability. Some steps that an employer can take to ensure a fair dismissal:

·         Note when a fixed term contract is due to expire and the notice provisions in there.

·         Send a letter to the employee to specify the date on which a fixed term contract is due to expire, explain why the contract is coming to an end and arrange a meeting with the employee where they can discuss the expiry of the contract.

·         It is useful to explain the details as to why the fixed term contract has come to an end as an employer will need to identify one of the five fair reasons for dismissal.

·         An employer should also set out the steps they have taken previously to discharge their duty inform employees on fixed term contracts about permanent vacancies.

·         The meeting should be held without unreasonable delay and before the fixed term contract expires. A outcome letter should be sent to the employee, either confirming the date of the expiry of the contract or setting out any alternative decision reached. A right of appeal should be offered.

Note that a fixed term employee has a free-standing right to be informed of any permanent vacancies in the establishment at which they work. Vacancies should appear in an advertisement which the employee has a reasonable opportunity of reading in the course of their employment, or the employee should be given reasonable notification of the vacancy in some other way.

Note that employees who have been continuously employed for four years or more on a series of successive fixed term contracts are automatically deemed to be permanent employees unless the continued use of a fixed term contract can be objectively justified.

Additional Questions raised during session:

1.      In the midst of a formal improvement plan. The employee has gone off-sick and is now looking at a phased return. When can the formal plan be re-introduced?

These are likely to be interlinked; they may all be part of one issue.

The employee may be meeting the criteria for disability under Equality Act and have a protected characteristic. If so and they are under informal improvement plan, you need to distinguish that this isn’t because of the disability and need to separate the two.

If their illness is not linked with performance issues, you would just follow your normal process and would act in accordance with the policies you have in place.

If the illness is as a result of improvement plan, maybe seek Occupational Health advice and provide any support they need. It would be a case of understanding the cause of sickness, communicating with the employee and understanding if any adjustments may be needed on their return. Once these are in place, and performance remains an issue, then this can dealt with under your policies and procedures.

2.      Contracts: where we have a contract with 1 to 1 employee, they are only an employee when they support the pupil and the contract terminates if the pupil leaves. How do we do this if we have another pupil, can we record this but would this be a GDPR issue?

I think you need to strip it back to the idea of GDPR. You only hold data as long as reasonable and provided that you think there is a basis for keeping it. You would need to justify why would you retain the information of the pupils name once they have left. You could use some other information to anonymise this. It is their personal data.

For personal data, you need to justify why you are holding/keeping the information but it must not be kept for longer than required.

Make sure that it is part of your privacy policy and notice, and therefore, you may keep it for that purpose.

3.      Gender Questioning

In 2023 the Government launched a review of the curriculum with a specific focus on whether children were being taught inappropriate content in their Relationships Sex and Health Education, particularly around gender issues. The draft guidance on the teaching of this subject was released late last year but the Government has now launched a Consultation for the views of parents, schools and the public with an interest. There is no date for the gender questioning final approved guidance as yet. This is a sensitive topic and I know staff will be mindful of the practical issue of questioning for both pupils and staff regarding their gender.  As yet we do not have a date for when schools can expect the guidance on this specific issue. However you can find the draft guidance here and a link to the consultation which is due to close on 11th July 2024 should you wish to share your views.

The recording of the Q & A and the accompanying notes are for information purposes only and are not intended to amount to legal advice. The information provided is correct as at the 21st May 2024.