Questions we have been asked this month

Education Article

03 October, 2017

Q. Will an NQT teacher accrue continuous service for the purposes of unfair dismissal?

A. The answer to this question will depend on where the service was accrued and the governance structure of the school. If the NQT trained at the same school into which they have qualified, then it is likely that this service will be continuous for the purposes of unfair dismissal rights (provided it is over 2 years in length.

Similarly, if a teacher trained at a different school but the employer is the same Local Authority (in accordance with the governance structure) without a significant break in service, then the continuous service will be accrued as above.

However in the event that the NQT year was spent in an LA school and then a teacher moved to an Academy or Free school, continuous service for the purposes of unfair dismissal would unlikely be accrued.

Q. If a teacher left employment under a Settlement Agreement with a reference are we obliged to provide the reason for exit to a prospective employer?

A. You are likely prevented under the Settlement Agreement from disclosing the reasons for the exit as most Agreements have strict rules surrounding confidentiality.

Our advice is always to stick to the reference as provided, and if further enquiries are forthcoming, refer the enquirer back to the original reference and/or advise that it is not policy to provide anything other than this.

In the case of maintained schools, the Schools Staffing (England) Regulations 2009 will apply, meaning that there will exist a statutory obligation to report on Disciplinary and/or Capability if the staff member has been subject to these processes before the Settlement Agreement had been entered into. It is also prudent for schools to be clear in such circumstances as to their obligations to report before entering into Settlement Agreements with agreed reference clauses; particularly where safeguarding is an issue. In the event that a Settlement Agreement is entered into; it will be necessary to ensure that these obligations are referred to clearly, in order to avoid instances where a school cannot meet their obligations in this regard due to the manner in which a clause is drafted.

The above highlights the importance of ensuring that Settlement Agreements are drafted properly and tailored to the specific facts of the case.

Q. It has been discovered that we have been paying term time only staff incorrectly (they have been underpaid by circa £1 per year) since 2014?

A. Notwithstanding the fact that there is no strict rules in place in the Employment Tribunal in terms of de minimis sums being claimed, in accordance with the overriding objective and therefore the requirement to deal with matters proportionately; it is unlikely that a Tribunal would entertain an unlawful deductions claim worth such a small amount due to the time and potential disproportionate costs associated with hearing one.

If you are looking for any more information with regards to our services view our Education section. You can also 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.

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