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Education Q&A 23rd February 2023

In our most recent Education Q&A, Ruth Rule-Mullen (Partner and Head of Public Sector Employment), Gemma Duxbury (Partner, Governance, Procurement and Information), Lucy Harris (Partner, Insurance) and Chris Bowers (Partner, Dispute Resolution) answer your Education questions:

1. If an employee is nearing two years' service, do we need to conduct a full dismissal procedure in order to dismiss them?

As a general rule, employees without 2 years' service are unable to bring a claim for unfair dismissal. This is subject to certain exceptions, for example whistleblowing or discrimination claims. If you do not consider these exceptions to be applicable, you do not need to follow a full dismissal procedure. However, you do need to conduct a fair process and we would always recommend that you seek advice first on the potential risks of any dismissal.

It is also important to note that an employee's notice period will count towards their service and therefore if the employee is nearing the two-year mark, this may be significant. Again, we would urge you to seek advice before making any decisions if you are unsure.

2. What implications does Martyn's Law have for school events and letting?

Martyn's Law is a response to the 2017 Manchester Arena terror attack and is being proposed as a way to scale up preparedness for, and protection from, terrorist attacks. It is named after Martyn Hett, who was tragically killed alongside 21 others in the attack.

A fundamental element of Martyn's Law is therefore how people in public places can be protected from possible terrorist attacks, with standard and enhanced risk tiers. This will include schools; however it is not yet clear as to which category schools will be placed under. Under the standard tier, there is likely to be a focus on training, information sharing and planning. Under the enhanced tier, there will be further steps including an inspection regime.

At present it appears as though schools are likely to fall within the standard tier category, however more advice will be forthcoming on this as it progresses and the government are pushing for the draft legislation to be available in spring.

With regards to lettings, it is not clear as to whether the responsibility will fall on tenants or landlords. However, within standard leases there are often provisions in place for the purpose of complying with legislation, and therefore there should be a mechanism for compliance in any event.

3. Advice on holiday pay for part-year workers

The fallout from the Harpur Trust v Brazel decision continues as the government releases a consultation paper to try and combat some of the disparities in the decision. We would therefore encourage you to get involved in the consultation and share your thoughts on how this decision has impacted you in the Education sector.

If there are any specific questions regarding holiday pay, please do let us know and we would be more than happy to help.

4. What debt recovery services do Forbes offer?

Forbes has a dedicated debt recovery department under the name Forbes Collect. The Forbes Collect team can assist from the Letter Before Action stage right through the Court process and to enforcement.

Forbes Collect acts as an efficient add-on to your existing credit control systems and act on behalf of a number of education providers, often in the recovery of outstanding school fees. The team also has the expertise to deal with bankruptcy petitions and statutory demands, which can be an effective tool in the pursuit of a debt.

The Dispute Resolution department at Forbes also has a specific Property Litigation team that can assist with any premises disputes and work alongside Forbes Collect who can assist in the recovery of rent arrears.

5. Should we be recording staff addresses and dates of birth on the single central record?

Yes, you should update the single central record with the name, home address and date of birth of all staff. There should also be evidence of their ID and the register should be kept up to date as often as possible. However, it is important to remember to ensure that you have a legal basis to retain that information and you do not do so for longer than is required. This information is special category data, and it is important to ensure you have the relevant safeguards in place to protect it.

Furthermore, there has been a significant amount of discussion recently regarding what information should be shared with the police or local authorities following the tragic case of Nicola Bulley. Our advice would be to ensure your policies are up to date and that there is a clear procedure to be followed for information sharing.

Data Sharing Agreements are an extremely useful tool in terms of achieving a mutual understanding with the authorities as to what information is to be shared, how it is to be shared and what protections are in place. This way both parties are clear on the position.

Ultimately, you do not have to share information with the police or local authority straight away and you should always consider the legal basis for sharing information. In any event, we would strongly recommend that you check your policies and seek independent advice before sharing sensitive information.

6. Are new contracts needed in light of the NJC 2022/23 pay agreement?

The 2022/23 Local Government & Schools Pay offer provided for an increase of £1,925 on all NJC pay points 1 and above (FTE), which includes an extra paid days' leave.

This change is reflected in the Green Book and therefore, in terms of contracts, if your applicable terms are stated as the Green Book, this should reflect the change and technically contracts do not need to be updated. However, it is advisable that you consider confirming the variation in writing by way of a variation letter or updating your contracts to reflect this as a claim can be brought alongside another claim only not as a standalone claim if contracts are not up to date.

We understand that the 2023/24 pay offer is currently being negotiated and therefore it may be the case that a further variation is required in due course.

Please note that this may differ in terms of term-time workers and further information would be required in order to provide advice on the impact of the NJC 2022/23 deal on such workers.

7. Does RPA Insurance cover Forest Schools or should there be another in place?

Our understanding of the RPA is that it will provide cover for the forest school activities to the extent that:

The Employers Liability section will provide an indemnity to the school if the school is legally liable to pay damages or compensation to a school employee if they are injured in the course of this activity.

The Public Liability section of the RPA will provide an indemnity to the school if the school is legally liable to pay damages or compensation to a third party, if the third party is injured or third party property is damaged in the course of this activity. Pupils and non-school pupils etc. would be deemed third parties.

However, the RPA will only provide an indemnity to the school. Therefore, if for example the school is using another organisation in the provision of the forest school activity, that organisation will need to have in place third party public liability insurance and you would need to obtain permission, if you've not done so already, to use non-school areas to carry out the forest school activities.

With regards to animals, the cover will likely extend to provide indemnity to the member school when handling the animals to the extent that the school are legally liable (negligent) in causing:

injury to school staff under the Employers Liability section; and

injury to third parties (including pupils etc.) and damage to their property under the Third Party Public Liability.

If the Forest School has animals that are cared for by the pupils or are brought into school for educational/therapy/wellbeing purposes, the RPA will provide an indemnity if a school is legally liable to pay compensation in the event of:

third party death/injury or third party property damage caused by an animal that is owned by or under the control of the school.

third party property damage or injury to a third party (including pupils) to the extent that the school is legally liable to pay compensation or damages to the claimant.

Furthermore, the Employers Liability section will provide an indemnity to the school if the school is legally liable to pay compensation to damages to an employee injured by an animal on school premises in the course of the employee's employment with the school. However, the RPA would not provide an indemnity to the individual owner of the animal for their legal liability, nor would they compensate the school if an animal dies or is stolen, and will not provide cover for vet fees if the animal becomes ill or is injured. Therefore, a separate insurance would be required if needed.

Please note that whether the RPA provides the appropriate level of cover will depend on the sorts of activities the Forest School undertakes, and we would always recommend having a conversation with them before signing up.

Please do not hesitate to get in touch should you have any further Education queries. The next Education Q&A is scheduled for 23rd March 2023 and please book your place here if you are interested in attending.

Learn more about our Education department here

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