Key Questions from June 2024 Education Q & A

Question 1. New procurement bill – What to expect?

-          We have had a lot of questions around this, and it has been a long time coming.

-          At the moment the legislation mirrors that of the European Union to ensure we are compliant.

-          Procurement Act 2023 will come into force on 28 October, again it will be similar to EU legislation and regulations.

-          This new act will increase transparency due to increased visibility for opportunities. And will ensure equal access to all public sector contracts.

-          It will reduce complexity in procurement process and streamline procedures and make it more accessible to smaller business.

-          It will support innovation by bringing in smaller business with innovative solutions.

-          It is a complex Act. So in summary it will be simple, transparent, allow innovation and make it better for smaller business to access.

-          Any questions, feel free to ask or send them over to Gemma Duxbury.

Question 2. Do you see any HR changes with a change in Government?

-          There may be a change in government in the next weeks. Labour look like the current front runners so we will focus on them and their manifesto for the purposes of this question, as they have many interesting HR and employment proposals contained within there and other supporting documents.

-          We have produced a podcast which outlines the other employment law proposals in the other party’s manifestos. The podcast can be found on our website.

-          Labour have released both a Green Paper and followed this up with Labours Plan to Make Work Pay document, which outlines the key proposals for employment law changes. In their manifesto they outline a clear commitment to implement these New Deal changes.

-          Included in Labour’s first steps there is a commitment to recruit 6,500 new teachers – funded by ending tax breaks for private schools. In addition, Labour plan to:

o   open an additional 3000 nurseries – by upgrading space in primary schools.

o   Implement a “School Support Staff Negotiating Body” and an “Excellence in Leadership Programme.”

o   Introduce a new report card system - to change inspections from a single grade outcome.

o   Free breakfasts clubs in every primary school.

o   Limit the number of branded items of uniform and PE Kit that schools can require.

o   Guarantee training, an apprenticeship, or help to find work for all 18 to 21 year olds via Skills England – to create a highly skilled workforce.

o   Transform Further Education colleges – to specialist “Technical Excellence Colleges”.

o   Support children to study a creative or vocational subject until they are 16 years old.

-          Other Employment law changes:

o   Introduce day 1 rights to sick pay, parental leave and unfair dismissal.

o   Increase tribunal time limits for bringing all claims from three months to six months.

o   Move towards a single status of worker – by having a “simpler two-part framework for employment status” where there would just be worker and self employed status.

o   Alter the criteria for determining the national minimum wage - all adults would be entitled to the same minimum wage and to include reference to the cost of living.

o   Employers with more than 250 employees to have a menopause action plan.

o   Change collective redundancy consultation requirements - based on the number of redundancies across the whole business.

o   Ban “exploitative” zero hours contracts – having a contract which reflects the hours they regularly work, based on a 12-week reference period.

o   Workers having the right to “switch off” - workers will have the right to disconnect from work outside of working hours and not be contacted by their employer during these times.

o   Trade Union rights will be strengthened - making it easier for trade unions to enter workplaces to organise, meet and represent their members, along with simplifying the union recognition process.

o   Replace the Apprenticeship Levy  with a Flexible Growth and Skills Levy, with Skills England consulting on eligible courses to ensure qualifications offer value for money.

o   Introduce a “landmark” Race Equality Act.

Following on from this – if Labour are elected on the 4th July, could they make these changes immediately?

-          Labour plan to implement changes within 100 days of them winning the General Election – however, Labour have repeatedly said they would consult with businesses and Unions before passing any legislation so it is likely that any Employment Bill will be in draft only.

-          Some of the proposed reforms have been debated on for years so they may be acted on very quickly as they have already been consulted on.

-          Where substantial secondary legislation is required, Labour say that they will engage with experts and stakeholders, including employers and trade unions.

-          The proposed reform to change the qualifying period if employment in order to bring a claim for unfair dismissal has been historically changed numerous times, most recently in 2012. Looking at the time frame for the previous changes they were made pretty quickly, however there were transitional provisions which provided that the change in qualifying period did not have effect in any case where the period of continuous employment began before the change came into force.

-          Process wise, an Order cannot be made under the provisions contained in the Employment Rights Act unless a draft of the Order has been laid before Parliament and approved by a resolution of each House of Parliament.

Question 3. With tightening budgets, if a member of staff is on a fixed term contract which has been renewed for the past 2 years, can you end the contract at the end of the school year?

-          Firstly, it is important to understand why the fixed term contract has been renewed for the last 2 years. We need to understand whether they are the genuine fixed term contracts?

-          You need to identify why a fixed term contract is needed - is it related to a particular type of work/funding or project. The more specific you can be the better.

-          It is important to remember that if a fixed term contract isn’t being renewed then this counts as a dismissal, so there needs to be a fair reason for dismissal. In this scenario the employee has been employed for 2 years so they would be protected against unfair dismissal.

-          What can you do?

o   Note that the fixed term contract is due to expire and the reasons why it is not being renewed.

o   Send a letter to the staff member to explain that their fixed term contract is coming to an end because of (and give a reason) and arrange a meeting with the staff member to discuss.

o   An employer needs to set out the steps they have previously taken to inform the employee on the fixed term contract of permanent vacancies within the business.

o   The meeting should be held without unreasonable delay and before the expiry date. An outcome letter should be sent and an appeal should be offered.

-          Lastly the scenario here specifically mentions budget tightening so there could be a potential redundancy situation here.

-          There is a clear definition of redundancy, it encompasses three types of situation: business closure, workplace closure, and reduction of workforce.

-          The ceasing of the work could be considered to meet the definition of redundancy. It could also be classed as some other substantial reason or both.

-          An employer would need to treat this as a redundancy situation if it is believed to fall within the definition of redundancy, so we would advise to follow a fair redundancy procedure.

-          One final point to considered is that those who have been continuously employee for 4 or more years on a series of successive fixed term contracts are automatically deemed to be permeant employees unless this can be objectively justified.

Question 4. How do you deal with a complaint on social media made by a parent?

-          Parents can communicate in different ways which can cause damage to the reputation of the school, and posts on social media can also target pupils.

-          It is best to send letters to parents, as preventative measures, where they have knowingly breached policies set by the school.

-          Promote social media positively, for example having 1 Facebook group for all parents of the school which is managed and controlled by the school. The benefit to this is everything is in one group and it can be managed appropriately and in line with any policies.

-          If there has been a post you have seen on social media that could damage the reputation of the school, first raise your concerns with the parent. Bring them into school and discuss your concerns with their posts, it also allows you to understand what their problem is and explain that there is a complaint policy. The complaints policy is how parents should make complaints and if they want to raise a formal complaint they can do so.

-          If the post targets a member of staff or a particular student, then reach out to the staff member/student and offer them additional support first and then invite the person making the comments in.

-          If when you invite the person making complaints on social media into the school, but the outcome is not positive and they don’t listen, you can report them to the social media platform used. It may breach the social media’s policy on harassment/bullying etc.

-          You can also report the incident to the police if appropriate.

-          If this all doesn’t lead anywhere, it is important to seek legal advice. The complaint on social media could amount to defamation: whether or not it is an expression of opinion/fact. An injunction could be very expensive. The other option is a cease and desist letter from a solicitor, which can be very effective.

-          Any queries relating to complaints/defamation please get in touch.

Following on from fixed terms question. What would be the position for agency staff continuously working  for 2/3 years but want to remain as agency workers?

-          Need to look at the status of the person working as an agency worker. If they have been placed on an assignment there should be contractual T & Cs with the agency. However, it would be important to look into this a bit further, as despite the contractual arrangement they have they become an employee/worker of the school/institution.

-          If they were your own worker/employee – they potentially have rights e.g. unfair dismissal and may accrue other rights like holiday play.

-          If the situation works as it should do with an agency, then you should be able to bring the commercial relationship to an end and say that you longer need that agency worker in the school / institution.

Are T & Cs from agencies good enough?

-          They are a good starting point. Proceed on this basis where everyone is under the understanding that an individual remains an agency worker and doesn’t morph into a worker/ employee.

-           It is important to keep reviewing documents though and have discussions with the agency to ensure that they reflect the position that you all understand this to be.

-          Keep asking yourself are they fit for purpose?