11 December, 2020
On 4 December 2020, a judgment was handed down from the High Court ordering a local authority to engage in mediation with the mother of a child in their care after a dispute arose over the mother seeking accompaniment by a lawyer for the mediation process. Though this case does not relate to an employment process, it is an interesting development given the law regarding accompaniment in internal employee procedures has long been a hotly contested topic of debate. It is also interesting from the point of view of investigating parental complaints.
The case of Kumar v London Borough of Hillingdon concerned a child with special needs who was under an Education, Health and Care Plan (EHCP) at a school within the local authority. When the EHCP came up for annual review on 5 June 2019, changes were identified. As many in the education sector will be aware, a local authority is required to issue a revised EHCP plan within four weeks of changes being identified. The local authority did not adhere to this timeframe and months of delay followed.
During this time, Mrs Kumar issued judicial review proceedings and a revised plan was eventually produced on 4 March 2020. Mrs Kumar did not agree with the plan and was advised of her right to appeal and the right to mediation under the Children and Families Act 2014 (the Act) and the Special Educational Needs and Disability Regulations 2014 (the Regulations).
Mrs Kumar confirmed she wished to go ahead with mediation, but with her lawyer present. The local authority refused to attend mediation if Mrs Kumar's lawyer was present, as 'mediation is an informal and non-legalistic process, unless both parties agree to the attendance of legal representatives, we will not be able to facilitate the meeting.' The view was that a lawyer may introduce an adversarial approach to mediation, 'be objectionable' and contrary to the 'spirit of mediation.'
The High Court found against the local authority confirming it had a legal duty to participate in mediation, and that both the Act and Regulations allowed for Mrs Kumar to be accompanied by 'any advocate or other supporter that the child's parent… wishes to attend.' Similarly, this was expanded by the Regulations, stating that any other person could attend, with the consent of both parties or the mediator. In passing comment, the Judge suggested it was 'entirely wrong-headed' to equate lawyers with confrontation as lawyers can and do act as mediators and support families in non-adversarial ways.
Currently, the Employment Relations Act 1999 allows for an employee to be accompanied disciplinary and grievance procedures by a trade union representative or colleague. This has long been a subject of debate, with some suggesting that this right should be expanded and/or the discretion of employers to expand this right to be enshrined in statute. Increasingly, employees are wishing to have more formal representation because of the potential impact such processes such as disciplinary hearings and/or grievance procedures may have on their continued employment.
The case above may indicate the start of a 'sea change' to the approach taken to professional representation, particularly following the comment that the inclusion of such representatives may actually add value to informal and internal processes, as opposed to adding further pressure and strain.
We suggest that now more than ever, school leaders have a mind to the support they offer during these processes and the circumstances where it may be beneficial to use your discretion, to aid a resolution to the process and/or prevent criticism if the decision was later to be considered by an Employment Tribunal. In doing this, we would strongly suggest making decisions of this kind on a case-by-case basis, giving a mind to the needs of the specific employee and the level of dispute you may be in.