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Education Q & A - 22nd June

1. We have teaching staff who voluntarily do lunchtime supervisor duties, historically we have an arrangement where we pay them a set fee and provide them with a free lunch. I am keen to understand if legally we are able to continue doing this as an extra payment via their teaching contract or if we should put them on a secondary support staff contract and pay rate. We do have some support staff who also do this and we put it through as an additional payment at a set amount. It seems a lot for admin to do to run secondary contracts and especially with them all being on LGPS pensions.

I will break it down into a few parts as it is a difficult question to answer with technical accuracy without seeing the contract, looking at payments and seeing what has happened historically. However, there are a few key generic points here that will be important in this instance and any other instance.

When you have a new employee, or an employee who changes their existing contract, their pay or their terms then you should issue a new contract or an updated one. There is a requirement in the Employment Rights Act for this, and what tends to happen is when someone brings a claim they can then bring an additional part of that claim for failure to provide that contract and it may result in having to pay 4 weeks pay for failure to provide it. Therefore, there can be quite a significant amount to pay for something which can be quite easily dealt with. Whilst it is burdensome, it may mean you will avoid those types of claims. The cost and risks of those sorts of claims probably outweigh the benefits. However, we all know that in the STCPD, that teachers cannot be required to perform lunchtime supervising duties so it is a good thing they are willing to do it voluntarily. You then need to look at the fee and determine whether it takes you below national living wage, and in addition, the free lunch can have an impact where you are giving the free lunch as part payment as that may reduce the payment to below national living wage. Again, you need to be mindful that if you are providing free things to staff sometimes there can be tax implications in terms of benefits in kind but we are not tax advisors and you would need to seek further advice around that. The most sensible option would be to put them on separate contracts for clarity about what is happening, what the pay is and what the terms of that are. The LGPS query is slightly more tricky but there is a good argument that it should be treated as pensionable service as well. We would need to look at this more specifically, but hopefully these generic responses should help people understand what is happening at their school. We would suggest seeking further advice about this.

2. Please can I ask about building regulations and is all work in schools subject to approval?

So the answer to that specific question is "Yes", building works carried out any school must comply with building regulations.

It is fair to say though, that there are currently fewer regulations than there have been previously and they are less prescriptive, meaning that schools are allowed more flexibility in how they use their premises. Many regulations state that provision must be 'suitable,' which is not precisely defined, but schools must consider the age, number and sex of pupils and any special requirements they may have when reaching a conclusion on suitability. These regulations apply to all types of school including nurseries and alternative provisions.

It's worth mentioning that recently building regulations were updated to help with the target of reaching net-zero carbon emissions by 2050. These amendments were mostly focused on new non-domestic buildings but also included policies for existing non-domestic buildings. The new regulations will apply to all projects from 15 June 2023. What has been introduced are mostly interim measures towards the government's Future Homes and Buildings Standard, which is planned to be introduced in 2025, a key part of which is that all new buildings are capable of being net zero.

We know that heating and power account for 40% of the UK's total energy use, so implementing new regulations that reduce the need to heat and power buildings will help the UK to reach its zero carbon goals. For that reason, the new regulations introduced, amongst other changes, updated minimum efficiency standards in new buildings, new glazing limits in schools and student accommodation, and also stated that existing buildings must improve the efficiency of their heating and boiler systems. There is an article in Architect's Journal which has a section dedicated to news and changes to building regulations which is regularly updated and available online for free.

Also available online is additional guidance on space standards, baseline designs which demonstrate good practice, and design principles and considerations for different types of works and schools . This can be found on the gov.uk website here.

3. Can you explain some of the key things that have been on your radar with insurance in terms of the education sector in the last few months?

There are quite a few things going on at the moment which might be on a school's radar. One that you will be familiar with is any asbestos claims for any asbestos installed in the 1960s and 1970s around schools where claims are starting to come in for mesothelioma, asbestosis or plural thickening. As ever, what you need to do with that is to keep hold of any asbestos registers, and we can help with that by tracking down insurance history, looking into the claim and looking into the validity of it. We have challenged a few claims against schools for different Councils by looking at the nature of the asbestos within the building and whether that would go over the thresholds needed to claim.

Another significant area is the issues coming out of covid, and obviously teachers and school staff will have been key workers during the pandemic. We have received correspondence from some claimant solicitors around potential claims as covid may well become a prescribed industrial disease either later this year or early next year. What we will be looking at is documentation around PPE and working from home. Leading on from this, either through covid or non-covid related, is the personal injury element of stress at work claims brought through the civil courts and these are very document heavy claims. We can assist with reviewing documents, looking at risk assessments and any potential claims or claims that have come in from a defendant perspective. We can get involved early on and guide you through the process.

We also deal with injuries like injuries to backs due to repetitive strain, carpel tunnel syndrome with repetitive typing and anything like that, we can assist and guide you on what you need to be keeping to use as evidence and on witness evidence.

4. We employ a contract cleaning company but we are looking to employ our own cleaners direct. We do know that TUPE will need to be followed and have registered for a Local Authority course to look at the ins and outs. What would be our first step with regards to approaching the cleaning company and are there any major pitfalls to be mindful of?

The answer to that is 'yes', it is going to depend on what type of school you are. If you are a Local Authority school where the Local Authority is the employer it will not simply be your decision because the staff are technically employed by the Local Authority and you will likely need their input. If you are not a maintained school then it comes down to who the employer is, and this differs for each different type of school. It also depends on what your role is within the school. This is the first major pitfall as sometimes we see that schools are trying to engage with new providers, changeover and get people to work in house or outsource their employees. In all these circumstances it is very important to establish who the employer is at the start, because if you are not the employer then ultimately you can't do it and you will need to get involved with the Local Authority if that is the situation you are in. Secondly, if you are going through a process of TUPE and you are looking to get rid of that contract then you will need to speak with Gemma Duxbury's GPI team to ensure you are terminating the contract properly in accordance with the provisions and sometimes there can be lengthy termination provisions so you will need input on that before planning what you are going to do. You will, if you are terminating that contract, potentially end up with the same cleaners anyway if they are only contracted for work at your school then they will likely be transferred over to you. So if the problem is that you do not think the cleaners are very good, you could still end up with the same cleaners. So you need to understand the reality of it and look at it in the round, it isn't just a TUPE issue, it is a contractual issue and can have various financial implications.

5. If staff transfer on TUPE to a contract caterer, can they at a later date change the contract terms and conditions. Is TUPE time limited?

No, TUPE is not time limited but the further you get away from the date of the transfer it becomes easier and there are certain rules about certain changes than can be affected, such as a positive change. There are various processes you would need to go through, i.e. consultation process and it depends on what the change to the terms and conditions are. If you are changing pay, which can be quite tricky, then you need to do a consultation and you need to plan and manage that process carefully.

6. If we took back contract catering inhouse and the staff are a mixture of previous school staff and new staff, how would pension work as the new staff are on an employer scheme that is not LGPS and we can only operate TPS and LGPS but this would be an increased cost?

You would have to look at what pensions you have got in place, you would have to look at what that looks like and you may have to looking at the pension obligation. The difficulty is that pension liabilities on TUPE are quite complex and it depends what type of school you are, in the public sector you also have public sector regulations which influence how you have to look at pension. The TUPE regulations are specific around pensions and a lot depends on what the current position, whether you have the LGPS status and it sounds like in this case that you have, and you can only operate the two but there will be an increased cost. This is something that you will need to consider in your commercial decision making as to whether you take the contract catering back in house. It is certainly something that you will need to factor into your cost model to help decide whether there is a commercial benefit to what you want to do because if they are the only pension schemes that you operate then it is going to have an additional cost and I don't think there is any significant way around that. It might be that you are going to save costs by bringing it back in and there may be economies of scale to be made, that is really going to be a financial case business decision as to whether you do that and what the costs are. If you are going to get into these sorts of negotiations, Forbes do deal like these on a regular basis and we have experienced people who can advise across the board. Thinking of this in advance it means that you can problem solve, rather than it creeping up on you.

7. I would like to introduce you to Louise Goss who works in our insurance team, similar to Nicola Dawn and works with Kella Bowers, Louise is going to talk to you about some of the things they are assisting with in the education sector for schools and education authorities.

I primarily work in the social care team but we also have a large education offering in terms of dealing with any claims arising in schools, higher educational provisions or special educations provisions across the board. We work with headteachers and business managers, we offer training to supplement their knowledge and boost their confidence in their management responsibilities. We can deal with a variety of claims such as slips, trips and falls, outdoor school activity trips both home and abroad, any safety concerns that might occur and any child protection responsibilities, educational welfare and historic abuse matters. We can also assist with any inquests, if the worst happens and staff have to give witness statements and evidence at trial or inquest then we can support you with that.

8. Has anybody got experience at removing TLRs from staffing structure or as staff leave?

Certainly we have seen that happening with education providers over the last couple of years with removing some TLRs, it depends which TLR it is and there are processes that you will need to go through to manage that quite carefully. Asking that question now is a really good sign as it sounds like you are in the early stages of planning this, it is more of a thought process at the moment and there will be others that have gone through this process. Even if you are at early stages of planning it sometimes comes back to 'you don't know what you don't know', we encourage you to talk to others and make early contact to get out in front of issues that might come or things that you are thinking of doing to ensure it is workable and assess the business case for it, does it make commercial sense, does it work for your school, do you need to do it and is there another reason why you are doing it. Test your theory and then put the plan in place to enact what you need to do and how you need to do it. As staff leave and you do not replace them, that may be an option. Assess how many TLRs you have, how many staff you have, what the likelihood of them moving on is or whether it is a dire business case and just a need for a restructure. Do think ahead and you don't just need to talk to the lawyers once it has gone wrong, discuss your ideas with us and all ideas have merit. We all want to support you and are keen to make sure we are your trusted advisors, if you need to reach out offline please do. We can always put you in touch with other clients with their agreement to draw on other experience from within the sector.

9. Is it courtesy to interview an internal candidate when they are not qualified for the role advertised?

No, you need to be clear on the job advertised, the job specification and whether that person meet the requirements. If they don't and there is no equaivalence, (as sometimes you look at different qualifications of experience), and they don't meet the specification then I don't think you should have to as a courtesy. You would then raise the expectation of the employee that they might be successful for that role, and what that needs is a conversation with that employee to discuss why they did not reach interview stage and why they did not meet the specification. It is important to have clear and honest conversations and one of the biggest problems we see in employment law is communication. This is far more important than trying to do the right thing and it is important that you have the right candidate for the right job.

For more information contact Ruth Rule-Mullen in our Education department via email or phone on 01772 220195. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Education department here

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