Immigration Bill – English language proficiency requirement for customer facing staff

Fluent English will be a legal requirement for all public sector employees who work in a customer-facing role. Legislation currently allows some health regulators to ask for evidence of English language competence from applicants who have trained in the EU. The new legislation will extend this requirement to every public sector worker in a public facing role, including teaching staff and assistants.

The requirement will be introduced in as part of new provisions in the Immigration Bill currently before Parliament. It means that academies and other public sector organisations will have to ensure that staff engaged in customer-facing roles are able to communicate effectively in English. A higher level of competence may be required depending on the nature of the role and the profession of the employee. Note, the rules apply to permanent and fixed-term employees, apprentices, self-employed contractors and agency temps. Further, either face-to-face or telephone conversations can bring a role within the scope of the fluency duty and it is anticipated that in scope staff will include those who have “regular and anticipated interaction with the public” as an “intrinsic part of the job role”.

On 13 October 2015, the Cabinet Office published a consultation on a draft Code of Practice relating to the new requirements. A copy of the draft Code can be can be accessed here.

The Cabinet Office has now published a report on the outcomes of its consultation. The report states that the government aims to continue with the approach proposed but some changes will be made in order to make its implementation easier.

The draft Code is intended to assist public authorities to provide a higher quality service offering to the public. Assuming the Immigration Bill comes into force, the Code must be followed by academies as it is intended for the language requirements to be a statutory duty. It is intended that the Code should provide assistance in determining the appropriate standard of spoken English to be met, the appropriate complaints procedure to follow should a member of the public consider that the required standard has not been met and the appropriate forms of remedial action which may be taken if a member of staff falls below the standard required.

Assuming these provisions come into force Academies the Code will require academies to:

  • Ensure all customer-facing staff are aware of the new duty and explain the possible actions which may be taken if their proficiency in spoken English is found to be insufficient.
  • Ensure existing selection and appointment practices refer to compliance with the language provision and inform those responsible for evaluating candidates of the spoken language requirements.
  • Stipulate in contracts of employment the standard of fluent English required as an occupational requirement for the role.
  • Ensure that their recruitment processes do not contravene the Equality Act 2010, i.e. all job applicants must be treated in the same way at each stage of their recruitment process.
  • Review their complaints policies to cover the new requirements.
  • Make clear in adverts and job descriptions the necessary standard of spoken English required for the sufficient performance of the customer-facing role.
  • Ensure consistency when advertising for similar types of customer-facing roles.
  • Brief interview panel members so they understand the language requirements for the role and provide an objective method of evaluating candidates against clear criteria set out in the role specification.

Facing the storm: historic sexual abuse claims

The UK child abuse inquiry has made a slow start and for most institutions has had little or no impact so far. It is easy to be lulled into a false sense of security. This would be a mistake. The inquiry will affect things a long way outside its direct activity.

Already "celebrity" abuse cases such as Jimmy Savile and Rolf Harris that have been through the courts have started to alter the public perception of this particularly nasty crime. The public are now more ready to accept that abuse occurred and many victims feel more able to speak out about their experiences.

At the end of last year the Children's Commissioner reported that although 50,000 cases of abuse were registered in the two years to March 2014 the estimated number of cases in the same period was closer to 450,000. At the same time the NSPCC commented that following the Jimmy Savile investigation the number of child abuse cases reported to them increased by almost half and that these probably only represented the tip of the iceberg.

So, is there any evidence at the moment that the number of sexual abuse claims are increasing? Data from the Compensation Recovery Unit, where all claims for personal injury are registered, suggest that between 2012 and 2014 the number of claims for compensation for sexual abuse registered with them increased six fold. Although the starting numbers were low, there is no reason to think that this year on year increase will not continue for some time to come as the UK inquiry gets underway and the issue of sexual abuse gets into the headlines again and stays there.

There has always been a small number of claims brought but they have faced problems both in terms of being outside of limitation periods and credibility as they mostly deal with abuse that occurred years or decades earlier. In the current landscape, it is likely that institutions are going to see an increase in the number of civil claims brought against them alleging abuse and courts are becoming more willing to use their discretion over the enforcement of limitation periods.

So what should institutions be doing? Clearly, there are real problems dealing with matters which may have happened as much as 20 or 30 years ago at a time when a local authority was in control of the school.

  • First and foremost, establish an insurance history for the schools in the existing trust and make this part of the due diligence exercise in connection with taking on any additional schools. It is not enough to know who the insurers were for the last four or five years, ideally details are needed for a much longer period. This can be a slow process but when a claim comes in there may simply not be time to complete these enquiries to establish what, if any, insurance protection is available.
  • The other key step relates to evidence. Often, witnesses have either died or can no longer be traced. There is little that can be done about that. Documents can, however, be collated and preserved. Indeed, the government have now given formal guidance to education establishments that no records (either paper or digital) are to be destroyed that may be relevant to the UK child abuse inquiry. Given the scope of the inquiry, compliance with this guidance requires considerable thought. Such records could include staff records, pupil records, minutes of staff meetings where issues of staff or pupil welfare and attendance records to name but a few examples. Further, particular care should be taken before documents are destroyed in line with any existing policies to ensure that their destruction is not subsequently open to criticism.

Taking action now is a far better approach than hoping that a claim will never come.

Sexting – what does the future hold?

Sexting is now part of our society, it is even recognised in the Oxford English dictionary. The recent case of ABC v (1) West Heath 2000 Limited and (2) William Whillock (“WW”) shows how sexting can result in civil liability and compensation.

Background

59 year old WW was Vice Principal and Child Protection Officer at a special educational needs school, attended by the 17 year old Claimant (“C”). In 2010, an intimate relationship between WW and C , came to light after another teacher found sexually explicit texts and indecent photographs on C’s mobile phone. WW pleaded guilty to four counts of possession of indecent images.

In 2013, C brought civil proceedings against both the school and WW for personal injury caused by sexual assault and being encouraged to exchange messages of a sexual nature. The court found allegations of sexual touching, fondling and digital penetration proved, but there was insufficient evidence of oral sex and rape.

C was awarded £35,000 in damages, the court made it clear that £25,000 of this related to the sexting element of the claim.

How does sexting give rise to a claim?

The court applied the tort (civil wrong) of “intentionally causing physical or psychological harm” and found WW’s texts to be in breach. The law in this area was set out in the earlier case of Rhodes v OPO, which defined a three-stage test:

Click here to view table.

The court accepted the conduct and consequence elements had been established.  WW acted unjustifiably towards C by emotionally manipulating/encouraging her to send indecent images and engaging in sexual banter in the texts.  This led to C suffering an adjustment disorder. 

When dealing with the mental element of the test, the court had to consider the argument that as the messages sent by WW were not shared or published, there was no actual intention to cause C distress. This argument did not succeed, however. The court referred to the judgement in Rhodes which said “there are statements (and indeed actions) whose consequences or potential consequences are so obvious that the perpetrator cannot realistically say that those consequences were unintended”. Of WW the court held that it must have been “obvious that the illicit relationship would…cause nothing but harm to the vulnerable Claimant…and those consequences must have been entirely clear and obvious” .The court accepted the conduct and consequence elements had been established. WW acted unjustifiably towards C by emotionally manipulating/encouraging her to send indecent images and engaging in sexual banter in the texts. This led to C suffering an adjustment disorder.

What does this case mean for the future?

This case demonstrates how the act of sexting can give rise to civil liability and how an employer can be held vicariously liable for the sexting of their employees.

Whether this signals the start of a tide of sexting cases is, however, debatable.The NSPCC commented in the media that “there is a danger young people could just use this as a way to get cash by suing one another”. Nevertheless, an opening of the floodgates seems unlikely. This decision was based on some most unusual facts which are unlikely to arise in most cases.

Firstly, C was a vulnerable student at a special educational needs residential boarding school. It is clear that the court considered this an obvious abuse of trust and that WW “helped to ensure that a vulnerable person was made more vulnerable”.

Secondly, shortly before trial, an application to amend the defence to raise the issue of consent was rejected by the Court. As a result, there was no consideration of reasonable excuse when determining the ‘conduct’ element of the Rhodes test and all proven ‘sexual activity’ between C and WW, regardless of age, had to treated by the court as abusive.

Thirdly, the court considered that WW had been clearly grooming C and that his recklessness as to an obvious consequence of the texts he sent was sufficient to meet the ‘mental’ element of the Rhodes test.

Finally, the age gap of 39 years between WW and C was an influential factor.

In cases of young people sexting each other, where there is unlikely to be an intention to cause severe mental of emotional distress or physical harm a court’s view may well be different. There is a growing movement to distinguish sexting between children from sexting involving adults. The government are currently working on plans to ensure that children involved in sexting do not face prosecution.

Sentencing for Health and Safety, Corporate Manslaughter and Food Hygiene and Safety Offences

The Sentencing Council Definitive Guideline “Health and Safety, Corporate Manslaughter and Food Hygiene and Safety Offences” came into force on 1 February 2016. The Guideline applies to any cases sentenced on or after this date, irrespective of when the offence was committed. The effect of the Guideline is to increase fines for organisations, including academies, which are guilty of an offence. Where applicable to individuals, the Guideline also lowers the entry point for which custodial sentences can be considered by the courts.

The Guideline contains five distinct sections. These contain details for sentencing in the following circumstances:

  • where an organisation is guilty of a health and safety offence
  • where an individual is guilty of a health and safety offence
  • where an organisation is guilty of corporate manslaughter
  • where an organisation is guilty of a food safety and food hygiene offence
  • where an individual is guilty of a food safety and food hygiene offence.

The Guideline operates by considering culpability and harm together with the turnover of an organisation to reach a starting point for the fine. This starting point can be reduced or increased within a category range depending on the presence of any aggravating or mitigating features.

For example, when considering fines for organisations for health and safety offences, culpability varies from ‘very high’ (where there is a deliberate breach) to ‘low’, where failings are minor and occurred as an isolated incident. Harm relates to the risk of harm created by the offence. In other words, it is not necessary to show that the offence actually caused harm, simply that there was a risk that harm would occur.

After establishing the culpability and harm, the courts will then consider the annual turnover of the organisation, using annual accounts to determine the appropriate sentencing matrix. The relevant categories are:

  • Micro – Turnover not more that £2 million
  • Small – Turnover between £2 million and £10 million
  • Medium – Turnover between £10 million and £50 million
  • Large – Turnover over £50 million

Most academies will fall within the medium category range. If being sentenced under this matrix for an offence with very high culpability and harm, an academy can expect a fine range of £1 million to £4 million with starting point of £1.6 million. Depending on the specific aggravating and mitigating factors of that case, the proposed fine will be towards the higher or lower end of the category range.

Once a proposed fine has been calculated, the courts will undertake an analysis which if correctly approached, should reduce the level of fine faced by an academy:

  • assess the proposed fine to consider its proportionality in light of the academy’s overall means
  • consider the impact of a fine on, e.g. service users and employees
  • consider any evidence put forward by the academy to show that the proposed fine would have a substantial impact on the provision of its services.

The suggestion within the Guideline is that these later stages should decrease the level of fine faced by charities substantially. However, until such reduced fines are seen in practice, all academies should be aware of this change in the landscape of sentencing for safety offences and consider changing their approach to risk management to reflect the potential impact a significant fine could have.

The Updated DfE Governance Handbook

Introduction

The DfE issued its new Governance Handbook in November 2015. It is accessible here:

https://www.gov.uk/government/publications/governance-handbook

The Handbook is not simply an updated version of the Governors’ Handbook, last issued in January 2015. As indicated by Lord Nash in his Foreword, the new name signals a new approach. The publication now could be said to:

  • be for all those involved in governance, whether or not they are in law governors/trustees, e.g. if they are members of a local governing body in a MAT. This is signalled also by substitution of the word “boards” for “governing bodies”
  • address the basic principles of good governance more explicitly, with some of the legal detail found in the previous publication being removed
  • stress the value of schools and academies coming together in formal joint governance arrangements, e.g. through federations of maintained schools or through MATs.

Much of the previous material has been retained, but such material is very differently arranged and some of it has been updated, shortened or otherwise amended. The main changes are indicated below.

Main changes from the previous publication

Section 1 – The essentials of effective governance

This replaces much of Section 1 of the Governors’ Handbook on the role of governing bodies. This was very factual and included a table of the functions of governing bodies according to the various legal types of maintained school. Section 1 now includes a statement on the value for more effective governance of schools coming together in formal groups. However, it also stresses the need for a robust independent review of the effectiveness of a school’s board and its readiness for growth before a school moves to academy status or grows into membership of a federation or MAT.

Section 2 – The core functions of the board

This section recycles some of the material in Section 1 of the Governors’ Handbook but with some important changes. It is stressed that concerns that a governor or potential governor may have linked to extremism should be reported to the DfE Helpline. There is more detail on the relationship between the board and school leaders and the need for strong governance and appropriately robust challenge to management. The section on “Asking the right questions” of management is expanded, as are the possible questions on financial performance and the use by governors of RAISE online.

Section 3 – People

This replaces the former Section 2 – Constitution and procedures, but also includes some material from the former Section 1. Points now stressed are:

  • the need for regular audits of governors’ skills;
  • the need to ensure that the skills needed are those to oversee the success of the school, not to do the school’s job for it;
  • the value of a diverse range of viewpoints on the board and the risks of a board being dominated by one viewpoint;
  • the need for careful thought on how the board is organised, including use of the board’s power to delegate to committees or individual governors;
  • the importance of transparency and for publication of up to date details of governance arrangements on the school website[1].

Section 4 – Structures

This consists of material from Section 2 in the Governors’ Handbook. More detail is given on the difference between the members and trustees of academy trusts – we frequently receive requests for clarification of this distinction from governors considering academy conversion.

Section 5 – Ways of working

This section brings together material formerly in Sections 1, 2 and 6 of the Governors’ Handbook. The coverage of complaints and whistleblowing has been shortened, but nothing should be inferred from this as to the importance of these topics.

Section 6 – Education

This section recycles the former Section 3 of the Governors’ Handbook with few changes. Note that the section on careers guidance is now headed “Careers guidance and pupil inspiration”.

Section 7 – Board improvement and Inspection

This section brings together material formerly in Sections 1 and 3 of the Governors’ Handbook. There is stress on the value of objective independent external review of a board’s effectiveness as a powerful diagnostic tool. While such a review may be required as the result of an Ofsted inspection boards are told they need not wait for any such situation to arise and can commission a review at any time.

Section 8 – Pupil wellbeing

This section recycles the former Section 4 of the Governors’ Handbook with relatively few changes. There is a new reference to the statutory guidance on Disqualification under the Childcare Act 2006 where staff are working in childcare provision in schools, and a new section on the Prevent Duty and the government guidance on this.

Section 9 – Staffing

This section recycles the former Section 5 of the Governors’ Handbook with relatively few changes. It notes that the Secretary of State’s guidance on appointment, discipline and dismissal of staff is, from 1 January 2016, no longer statutory and should now be regarded simply as advice. There is also reference to the Specified Work Regulations that allow maintained schools to employ industry experts as instructors to teach where specialist qualifications and/or experience are needed, though they will continue to be classed as unqualified teachers for pay purposes.

Section 10 – Admissions and organisational changes

This rather disparate section covers most of the ground previously covered in Section 6 of the Governors’ Handbook, with material on Control and community use of school premises and on Parents’ views and Parent Councils moved to the next section.

Section 11 – Control and community use of school premises

This section contains material formerly in Sections 6.3 and 6.6 of the Governors’ Handbook. The coverage of Parent Councils is now in section 11.6. There is an explanation of the three ways that an academy can operate a nursery on its premises.

Section 12 – School finance

This section recycles the former Section 7 of the Governors’ Handbook with relatively few changes. The material has been rearranged, with the section on Efficiency and value for money now coming first. There is a new reference to Financial Notices to Improve and the section on School Condition Allocations has been updated.

Section 13 – Information sharing

This section recycles the former Section 8 of the Governors’ Handbook with relatively few changes save for a reminder of the need to publish details of governance arrangements on the school website.

Section 14 - Support to be effective

This section is an updated version of the former section 1.8 in the Governors’ Handbook.