Dealing with Industrial Action

Chaos is set to sweep across the public sector, as the Country's largest Teaching Union approves strike action that could trigger the biggest shutdown of schools due to strike for many years. The strike action is set to affect schools across England and Wales on numerous dates throughout February and March, with the first date set as soon as 1st February 2023.

The teaching strikes are the latest to be announced in a wave of industrial action which has seen stoppages across various public sectors in recent months and will be coupled with strikes in other sectors on the same date.

How did this happen?

By legislation, for industrial action to be considered lawful, Trade Unions are required to hold a strike action ballot whereby members vote in favour or against taking industrial action. In the education sector, ballots must have a turnout of at least 50% of members and the action must have support of at least 40% of all members, not just those who voted.

Risk Assessment of Trees on School Property

Newcastle City Council have recently been fined £280,000 due to the tragic death of a six-year-old girl, who sadly died at school after being struck by a falling tree. The fatality is a stark reminder of the necessity for Councils to prioritise the safe management of trees on school land.

Facts of the Case

In this case, Newcastle City Council, were found to have breached Section 3(1) of the Health and Safety at Work etc. Act 1974 in failing to:

'detect and take care of a decaying tree that later fell on a school playground resulting in the death of a six-year-old girl,' on 25 September 2020.

The Annual Report of His Majesty's Chief Inspector of Education, Children's Services and Skills 2021/2022

On 13 December 2022, OFSTED published their annual report detailing the outcome of their inspections and regulation of education providers between September 2021 and August 2022. The report specifically considers the impact of the COVID-19 pandemic recovery.

Essentially, recovery in education following the pandemic is a 'work in progress.' Although there have been some improvements in schools, it is unclear what the 'lasting impact of lost education' will have on children in the future. Amanda Spielman (His Majesty's Chief Inspector) stated that,

"Across all age groups in education, careful thought has been given to making up lost learning. However, achievement gaps are still wider than before the pandemic, meaning the recovery is far from complete."

Admission appeals, decisions, and Judicial Review

Admissions appeals and disputes are well known to be highly contentious and emotive. Once a decision has been made after an appeal has been heard, that decision is final. Whilst is possible for complaints to be made to the Local Government Ombudsman (maintained schools) or the Department of Education (other schools) about an appeal process, generally the only way the decision itself can be challenged directly is by taking Court action. The type of Court challenge instigated in these situations is a judicial review.

It is very important that schools and colleges take all necessary steps to mitigate against the risk of a complaint or Court challenge. The purpose of this article is to consider judicial review, its process and what to be aware of from a litigation perspective.

Teachers strike

On the 16th of January 2023, the National Education Union (NEU), being one of the trade unions representing the teaching profession, announced 9 out of 10 of its members voted to strike after taking part in a ballot.

According to the NEU teachers are going to strike over a mix of low play and excessive workload.

Union officials have declared that thousands of schools in England and Wales will close in February because of the NEU’s members vote to strike. 

EHRC Guidance on hair styles in schools : schools should review and possibly amend their uniform policies.

It has long been considered the norm for schools, and places of work, to require their pupils and/or employees to adhere to a uniform policy. Indeed, I and many of my peers remember being told at school that we couldn't wear nail polish or wear our tie too short etc.

One aspect of uniform policies has recently come under scrutiny. In October 2022 the Equality and Human Rights Commission (EHRC) published specific guidance regarding the hair styles of school pupils (Preventing hair discrimination in schools | Equality and Human Rights Commission (equalityhumanrights.com)). The Commission stated that school policies which prohibit their pupils from having specific types of hairstyles may be indirectly discriminatory. Indirect discrimination is adopting a policy whereby one group or groups of individuals are placed at a disadvantage. Such policies can be utilised provided it can be demonstrated that they are a proportionate means of achieving a legitimate aim.

Education Q&A: 19th January 2023

Here is a summary of the questions answered by Ruth Rule-Mullen and James Barron (Education, Employment), Stephen McArdle (Dispute Resolution), Gemma Duxbury and Laura Rae (Governance, Procurement and Information), Catherine Kennedy (Property) and Amy Jackson (Insurance) at our Education Q&A webinar on 19th January 2023.

HOLIDAY PAY

Harpur Trust v Brazel

1.Can you provide an overview of the Harpur Trust v Brazel decision and its implications?

There are two fundamental impacts of the Harpur Trust v Brazel ruling:

A) Part-year workers who are employed on a year-round contract are entitled to 5.6 weeks pay that is not pro-rated

This means that anyone employed throughout the year is entitled to 5.6 weeks of holiday pay and can't be pro-rated, regardless of whether they work full-time or only part of the year e.g. invigilators.

Please note that part-time workers are not necessarily part-year workers. For example, if you have a member of staff on a permanent contract that works 3 days every week, all year, they are part-time and their 5.6 weeks of holiday pay can be pro-rated.

Upcoming Education Q & A :

Due to popular demand following our session on 19 January 2023 and to help support those within the education sector, our dedicated Employment specialists will be hosting an additional live Q&A session on the imminent strike action facing schools and colleges. This session will be suitable for Headteachers, School Business Leaders, Trustees and Governors, as well as colleagues in the HE & FE sectors, including Principals, Clerks, and those dealing with HR issues. Please do join us for more information on the legal position and practical tips for responding to the planned strikes as well as the opportunity to pose questions about action specific to your sector.