Education legal issues
Helping to guide the way
Education law magazine Summer 2014 nstep
2 Instep • Introduction by Diane Gilhooley
Head of the Eversheds Education Team
2 Introduction by Diane Gilhooley
3 An Interview with David Russell
6 Zero to hero, and back again
10 Sweeping changes to family friendly rights
12 Anti-social behaviour on campus
14 Eversheds’ news
The Education and Training Foundation is charged with
raising standards in teaching, leadership an workforce
development within the education and training sector.
In this issue, we are delighted to have interviewed David
Russell, the Chief Executive of the Education and Training
Foundation, who tells us how the foundation will differ
from its predecessor the LSIS, and where it will be in 5
Looking to employment matters, we review the
controversy surrounding zero hours contracts and explore
the potential benefits and limitations of using this type
of contract in an institution. We also look at the far
reaching changes to family friendly rights and the need for
institutions to examine their policies and procedures and
prepare early for these changes.
Finally we consider student matters and explore anti social
behaviour on campus and how institutions can balance
the freedom of students and the legal and practical
issues when dealing with matters ranging from general
rowdiness to rape and drug dealing.
As always, we welcome comments on the magazine and
suggestions for topics to be covered in future issues. In
the Autumn we will be piloting separate versions of the
magazine for academies and colleges, on the one hand,
and higher education institutions on the other. We will be
particularly interested in feedback on the pilot issues in
Welcome to the Summer edition of our Instep Magazine. As the Summer comes to an
end, I hope that preparations for the new term are going well, despite the many pressures
on the education sector. In the last quarter we have seen many changes, including the
appointment of a new Education Secretary, Nicky Morgan and the appointment of a new
Skills Minister, Nick Boles. With changes to Student loans, Ofsted inspections, GCSEs and A
Levels around the corner, and many changes to family friendly rights, both education and
employment issues continue to be the subject of media coverage and debate.
Instep • An interview with... 3
David Russell, Chief Executive,
Education and Training Foundation
David, you took up the top job at the Foundation
in January 2014 after nine years in the Senior Civil
Service, where you were responsible for vocational
education reform and closing attainment gaps. How
do you see your previous experience benefitting your
I actually spent 16 years overall in the Civil Service and
two years before that as a teacher of young people and
adults. My last eight years in the Senior Civil Service were
directly relevant to my role at the Foundation as they were
concerned mainly with adult skills policy. The Foundation
needs to look both outwards and inwards. My role requires
good personal networks and understanding of the
language, ethos, policy and practice of learning and skills.
It also demands an understanding of how government
works, as the government is a key stakeholder. Even as
the Foundation moves away from government – which
is what everyone, including the government, wants – it
will still be necessary for the Foundation to keep ‘on side’
with government. Those leading the Foundation need to
understand the political process without getting sucked
into it. There is nothing quite like Whitehall, and it is
difficult to understand unless you have been on the inside.
You could say therefore that I am almost uniquely qualified
for my role.
Photograph by: Ellis O’Brien
Instep • An interview with...
Non-governmental bodies in the learning and skills sector seem to come and go fairly regularly. How will the Foundation differ from its immediate predecessor, the Learning and Skills Improvement Service (LSIS)?
It is true that non-governmental bodies in FE change regularly, and more often than in the schools and higher education sectors. This is because the status quo in HE is bolstered by the tradition of academic freedom and the strengths of universities. In the school sector the status quo is bolstered by a huge amount of education law and strong organisations such as teaching unions and – in the past - local authorities. In FE there is a relatively small amount of legislation and institutional independence is relatively new (only two decades).
The Foundation will differ from LSIS in being a lot smaller, with fewer staff and a smaller budget. This requires it to operate in quite a different way. Whereas LSIS could at least try to do everything itself, the Foundation has to be a commissioning body, working in partnership with others and focusing on its top priorities. The Foundation will not seek to be different from LSIS in every way, it should learn from past experience. However, it should not repeat those actions which proved problematic, for example LSIS had quite unwieldy governance arrangements whereas the Foundation has a sharply focused board with a clear line of sight through its Executive, Board and Chair to its owners, the FE sector. The Foundation will also work hard to keep government on side while delivering what the sector demands, whereas LSIS ultimately did not convince government or the sector of its raison d’être.
The Foundation was originally conceived by government ministers as a “Further Education Guild”. To what extent, if at all, has the Foundation moved away from this original concept?
I do not think anyone, even John Hayes, knew exactly what the label “Guild” meant. But the original idea was that the FE sector needed to show more unity of purpose, with a single improvement body working for the benefit of learners and employers rather than providers. The body would be sector owned, collaborative in function and focused on the sector’s beneficiaries. The government, although concerned at a strategic level with the success of the FE sector, did not want to set a detailed agenda since this would come more effectively from the sector itself. This line of policy is still much of what the Foundation is about.
However, independent providers, in particular, felt that the ‘Guild’ title signalled exclusivity and protectionism, and I agreed. Even the reference to FE could be interpreted as protective of colleges. The Foundation is therefore committed to being inclusive and outward looking.
Stewart Segal, AELP Chief Executive, has described the Foundation as being “truly about self improvement by the sector, for the sector”. How do the Foundation’s governance arrangements ensure that it is genuinely owned by the skills sector?
Stewart is right. Ownership by the sector is ensured in three ways. The Foundation has been established as a company limited by guarantee with just three members, the AELP, the AoC and HOLEX. The members appoint the majority of directors and the directors in turn appoint the rest of the board. The members delegate control of the Foundation to the board. Secondly, the Foundation does a huge amount of consultation, both general on identifying the organisation’s priorities and specific on particular issues such as sector leadership, maths training and how to refresh professional standards. The Foundation needs to have a steer from the majority in the sector and never simply to rely on what it thinks is right for the sector. Finally, the Foundation has three expert panels of people recruited from the sector, each addressing one of the Foundation’s priority areas. Panel members range from professors, to chief executives, to learners and are appointed as individuals for their expertise and not to represent particular interest groups. The panels ensure that the work on our priority areas is both strategic and well informed by sector perspectives.
Instep • An interview with...
You have gone on record as saying that the sector must safeguard its future by “making it pay”. How will the Foundation earn its keep after the funding from BIS reduces in 2015 and possibly ceases thereafter?
It is far less important that the Foundation survives than that the sector itself does! I think we can use public money efficiently and effectively but if this does not help learners and employers then the Foundation should not survive.
It should not be assumed that BIS will necessarily reduce and ultimately stop funding. The reduction in grant from £18 million in 2014 to £10 million in 2015 and possible cessation in 2016 was to ensure that we did not get comfortable – the onus is on us to prove our effectiveness, impact and sector approval. One possible benchmark is to ask whether we are achieving more than if the government gave the same amount of money to everyone working in the sector (which would amount to a sum of £80 per person). We think we can easily beat this! And in fact we have already secured a £1million increase in government funding this year.
I accept, however, that the Foundation needs to diversify its income streams. We can seek to tap other government departments, and not just BIS, including DfE, DWP and, in relation to offender learning, the Ministry of Justice. We may also be able to apply to the EU for funding from sources such as the European Social Fund. We may be able to attract funding from non-governmental organisations with objectives similar to ours, for example bodies seeking to improve the country’s expertise in the STEM subjects. Finally, there are likely to be opportunities to sell our products and services to the sector, both in England and in other UK countries.
One of the services provided by LSIS which many in the skills sector particularly valued was the Excellence Gateway. Is the Gateway safe in the Foundation’s hands? How do you see the Gateway developing?
I think the Gateway is a real asset which was created with tax payers’ money and must be retained for public use. However, it needs to develop. While it is rich in content the organisation and navigation of its web site are quite weak. We are currently overhauling the Gateway, which will be re-launched in July/August. I cannot say much about this here, but, for example, there will be new exhibition sites to showcase developments in line with our priorities.
Where would you hope the Foundation is placed in five years time?
It is more important to consider where the sector will be in that time rather than the position of the Foundation. I will be happy if there is far more effective teaching of maths and English to those aged 16-19 – the sector is currently struggling to address this issue. I would also hope to see a significant improvement in the sector’s leadership capability. While there is some excellent leadership there is too much variability. Many college boards need to improve their renewal and succession arrangements. I would hope that in five years time Ofsted will be more positive about the sector’s leadership and management. Finally, I would want to see employers fully integrated into the vocational education and training system so that there is a clear line of sight between FE provision and work, with better escalators to higher levels of education and training. We need to harness the capacity and willingness of employers to work with providers.
I believe that the Foundation has a vital role to play in achieving these three aims. If we achieve these strategic objectives then it will be clear that the Foundation is efficient, effective and a force for good.
David Russell, thank you very much.
Instep • Zero to hero, and back again
The use of zero hours contracts
Figures released by the Office for National Statistics in April 2014 revealed that there were an estimated 1.4 million zero hours contracts (defined as “employee contracts that do not guarantee a minimum number of hours”) in operation and under which work was provided in January-February 2014. ONS Labour Force Survey estimates (based on information provided by individual workers) also indicate a large increase in the numbers of workers on zero hours contracts, up from 250,000 in the fourth quarter of 2012 to 583,000 for the same period in 2013. The Government also reports an increase in the use of these contracts between 2004 and 2011 across a number of sectors, including the education sector.
Other evidence suggests that the use of zero hours contracts across the education sector is also high. For example, in September 2013 the University and College Union (UCU) reported that 61% of further education colleges in England, Wales and Northern Ireland have teaching staff on zero hours contracts whilst 53% of those UK universities which responded to the union’s information requests also use these contracts.
Zero to hero, and back again – the rise and fall of zero hours contracts
There is increasing evidence of reliance by employers, both in the education sector and elsewhere, on contracts that do not provide any minimum guaranteed hours of work, commonly described as ‘zero hours contracts’. This has resulted in the use of such contracts coming under increased scrutiny, culminating in changes to the law and calls to further regulate, or prohibit, their use.
In this article we ask, what are zero hours contracts and why have they generated so much recent controversy? In doing so, we will explore the potential benefits and limitations of these contract models and what the future holds for their continued use.
Instep • Zero to hero, and back again
Since early last year the political debate around the use of zero hours contracts has gathered momentum. The topic was the subject of much debate during last Autumn’s party conferences, culminating with Vince Cable, the Business Secretary, announcing in September 2013 that there would be a formal consultation into zero hours contracts, with a view to tackling any abuses that the Government identified. This consultation concluded in March 2014. The Labour Party also commissioned a review by Norman Pickavance, former HR Director at supermarket chain Morrisons, who reported in April 2014 and recommended a number of wide ranging restrictions to the use of zero hours contracts, noting that “zero-hours contracts are on the rise and the lack of rules governing their use leaves scope for abuse”. Also in April 2014, the Parliament’s Scottish Affairs Committee published an interim report which recommended that “in the majority of cases, zero hours contracts need not and should not be used at all”.
There has also been significant debate about the use of zero hours contracts in the education sector. For example, UCU has called for “zero tolerance 4 zero hours” as part of its ongoing “stamp out casual contracts” campaign. There have also recently been reports of strike action by school teachers in relation to proposals to introduce zero hours contracts in one particular school. Similar campaigns have been seen in Scotland, with the Further Education Lecturers Association describing zero hours contracts as an “abomination”. More recently, UCU responded to the decision by a Scottish university to advertise for a zero-hours lecturer, stating that, “The continued use and promotion of zero-hours jobs in the sector is an embarrassment, and is damaging the reputation of higher education in Scotland.”
Why the controversy?
To understand both the popularity of these contract models with many employers, and the opposition to their use from some quarters, it is important to understand firstly what exactly is meant by the term ‘zero hours contract’ but also how these contracts may be used in practice.
The Small Business, Enterprise and Employment Bill 2014-15, currently going through parliament, offers the following definition of a zero hours contract:
“a contract of employment or other worker’s contract under which (a) the undertaking to do or perform work or services is an undertaking to do so conditionally on the employer making work or services available to the worker, and (b) there is no certainty that any such work or services will be made available to the worker. For this purpose, an employer makes work or services available to a worker if the employer requests or requires the worker to do the work or perform the services.”
In short, an arrangement under which an individual agrees to undertake work on the condition that work is available, but where the employer is under no obligation to make such work available.
However, this definition arguably does not reflect the range of different types of zero hours contracts that can be found, or the very different circumstances under which they can be applied. The term, could, for example, be applied to a contractual arrangement under which an individual may not know from one day to the next what hours they may be asked to perform. It could also be applied to working arrangements where individuals are required to be ‘on call’ without pay at or near a workplace, in case work becomes available, or where staff are expected to undertake unpaid travel between work engagements.
These may however be contrasted with the type of zero hours arrangements that are more typically seen in the education sector. These may often take the form of an overarching contract of employment, supplemented by a series of separate agreements under which working hours are allocated periodically (for example, on a termly or annual basis), which allows those allocated hours to be varied, and in the case of zero hours contracts reduced to zero, under each separate agreement. Under this model, the employee will have contractually guaranteed hours for the duration of each separate agreement, which may cover an academic term or year, but no guarantee of hours following the end of that agreement. Such contract models may be used for, for example, part-time sessional teaching or lecturing staff.
Certainly, many of the concerns that have been raised regarding zero hours contracts appear to relate less to the substance of the contracts but more to their misuse. This is reflected in the Government’s response to the recent consultation, in which it is acknowledged that such contracts perform a valuable role, delivering benefits for both employers and employees, but that the flexibility they offer has been abused by “unscrupulous employers”. This reflects views expressed by employer organisations (as reported in the House of Commons Library report of May 2014), including the CBI and the Federation of Small Businesses, who also recognise the value of zero hours contracts in the current labour market but stress the importance of “responsible management” in the use of such contracts.
Many education sector employers may share this view and chose to continue to use such contracts, notwithstanding the opposition that they may face from sector unions and elsewhere. It is however important that, in doing so, they understand the potential contractual, legal and practical difficulties that can arise from the use of this type of contract.
Contractual, legal and practical considerations
One important question for employers using zero hours contracts is whether or not an individual engaged under that contract will be an “employee” who will enjoy the rights and protections that flow from that status. This will include, for example, protection from unfair dismissal and the right to statutory redundancy pay (subject to having the necessary qualifying period of service).
There is no statutory definition of employment status and it will therefore be determined by reference to the circumstances of each individual case. The courts have however identified key criteria for establishing the existence of an employment relationship. These include:
mutuality of obligation – an obligation on the employer to provide work and for the individual to accept that work;
personal service – the requirement for an individual to provide services personally to the employer (rather than sending a substitute to work in their place); and
control – the exercise of control by the employer over the way an individual performs their duties.
What is clear is that engagement under a zero hours contract does not prevent an individual from having employment status, and for many zero hours contract arrangements the above factors will be present. In short, it must not be assumed by employers that an individual engaged under a zero hours contract will have no protection under domestic employment law or that they cannot be an employee (and this was acknowledged in the Government’s consultation document).
Any uncertainty regarding the employment status of zero hours workers, or their rights and obligations more generally, may be addressed, in part, through careful drafting of the contract. Certainly many of the zero hours contract models used in the education sector will be expressly drafted as employment contracts (and there may be an expectation on both sides that the individual engaged has employment status). However, one of the areas of abuse of zero hours contracts identified by the Government was a general lack of transparency in the zero hours contracts used by some employers. In particular, it found evidence that some individuals were unclear of their employment rights whilst engaged under zero hours contract or of the terms of those zero hours contracts.
There are however likely to remain a number of particular aspects of an employer’s contractual relationship with their zero hours workers that may give rise to uncertainty and risk and which it is important employers clearly understand from the outset.
One particular difficulty that can arise, for example, is how to allocate and calculate holiday leave and pay for an individual who has a zero (or variable) hours contract. Where an individual’s hours are expected to vary over the course of the holiday year, it may become difficult to calculate in advance how much paid holiday an individual will accrued over a particular period. Employers in the education sector will often address this challenge by requiring zero hours staff to record the hours they have worked for each relevant pay period and for this information to then be used, retrospectively, to calculate holiday pay accrued for that period. This may however present an administrative challenge where large numbers of zero or variable hours staff are engaged.
Employers must also exercise care in relation to remuneration provisions for zero hours staff, including to ensure that they are complying with the National Minimum Wage provisions. Particular risks can arise if, for example, an individual engaged under a zero hours contract were required to be on call at or near a place of work. In those circumstances, they may be entitled to receive the minimum wage for that ‘on call’ time. There are also complex rules which apply to travelling time to and from work engagements and again it will be important for employers to be aware of their obligations to zero hours staff in these circumstances.
Concerns have also been expressed regarding the use of ‘exclusivity clauses’ in zero hours contracts and the potential unfairness they may give rise to in circumstances where the individual wishes to use the flexibility they have under their contract to undertake other work. The Government has responded to this by introducing draft legislation to ban the use of exclusivity clauses in zero hours contracts. These provisions are included in the Small Business, Enterprise and Employment Bill 2014-15 which received its second reading in the House of Commons on 16 July 2014. The Government has followed its proposal up with a public consultation on how it can effectively prevent employers from circumventing such a ban, the closing date for which is 3 November 2014. Employers currently using such clauses should therefore carefully review their application to zero hours contracts in anticipation of the introduction of this legislation.
Finally, it is important that employers using zero hours contracts give careful consideration to the circumstances under which those contracts may be terminated. Where, as may often be the case in the education sector, zero hours contracts are permanent contracts, appropriate monitoring will need to be put in place to ensure that such contracts are not permitted to continue indefinitely, in circumstances where no work is being provided or undertaken. A failure to do so could expose employers to potential legal risk, where a decision is subsequently taken to end that contract. It may, for example, be difficult to identify a potentially fair reason for dismissal in circumstances where a zero hours contract is being terminated many months, or even years, after an individual last undertook work under that contract.
Instep • Zero to hero, and back again
Aside from the potential contractual pitfalls when implementing and operating zero hours contracts, employers must also be aware of other potential legal risk areas. One such potential risk is discrimination. For example, staff working under a zero hours contract will be protected from less favourable agreement on the grounds of their part time status. In the case of Sharma v Manchester City Council (2008), a group of lecturers sought to complain of less favourable treatment on the grounds of their part-time status. Some of these part-time workers were engaged under variable hours contracts, which effectively allowed the employer to reduce their hours on an annual basis to reflect the employer’s operational needs. In response to funding constraints, the employer exercised its contractual right to reduce the hours of this group of staff (before considering changes the to hours of other workers), relying on the variable nature of their contractual hours. However, those staff claimed that this amounted to less favourable treatment on the grounds of their part-time status. The Employment Appeal Tribunal agreed and found that whilst the part-time status of this group of staff was not the only reason they were treated less favourably (in was also in part due to the nature of the contract that they were engaged under) this was nevertheless discrimination on the grounds of their part-time status.
What this case illustrates is that whilst employers may have a contractual right to vary the hours of zero (or, as in this case, variable) hours staff to reflect financial or operational demands, this will not relieve it of its obligation to also comply with discrimination legislation.
However, the unusual nature of a zero hours contract may, in some circumstances, give employers a potential defence to this type of discrimination claim. In order to claim discrimination on the grounds of part-time status an employee must be able to demonstrate less favourable treatment by reference to a comparable full time worker. However, a full time worker will only be a valid comparator if they are employed under “the same type of contract” as the part-time worker. In the case of Wippel v Peek & Cloppenburg GmbH & Co KG (2005) the European Court of Justice found that a worker under a zero hours contract was not employed under the same type of contract as her full time comparator by virtue of the fact that her comparator was required to work a fixed number of hours (whilst the zero hours worker was not). This case did however turn on its particular facts and it should not be assumed by employers that they would have an automatic defence to any part time discrimination claim brought by a zero hours worker, on this ground.
Finally, employers will need to be aware of the risk of potential indirect discrimination claims from zero hours workers, particularly if these contract models are being predominantly used for groups of staff where there is a higher proportion of, for example, women or young workers.
What is next for zero hours contracts?
In addition to the proposed introduction of a ban on the use of the exclusivity clauses, and the related consultation referred to above, the Government has responded to the recent consultation process by announcing that it will:
work with unions and business to develop a code of practice on the fair use of zero contracts, by the end of 2014; and
work with stakeholders to review existing guidance and improve information available to employees and employers on using these contracts.
In the meantime, the Zero Hours Contracts Bill, which calls for a prohibition on the use of zero hours contracts, is due for its second reading on 21 November 2014. However, as a private members bill, this is arguably less likely to come into force.
Regardless of whether we do see further legislative changes in this area in the near future, what is clear is that the issue is likely to continue to generate controversy and to provoke challenge from education sector trade unions. It is therefore crucial that employers using these contracts do so with a clear understanding of the potential local industrial relations implications, and of the legal and administrative pitfalls that can arise from their use.
For further information, please contact:
Partner, Head of the Eversheds’ Education Sector Group and the Education Employment Group
Tel: 0845 497 8151
Int:+44 161 831 8151
Instep • Zero to hero, and back again
Instep • Sweeping changes to family friendly rights
The amended right to request flexible work
On 30 June 2014, the right to request flexible working arrangements was extended to all employees with 26 weeks’ continuous service. Previously, provided the requester has sufficient qualifying service, there was a right to request flexible work if the request related to a child under 17 years old (or 18 if the child was disabled), or a person aged 18 or over in need of care. Education institutions do however retain the right to refuse the request on the pre-existing statutory grounds, which include cost; ability to meet customer demand; quality and performance.
The statutory procedure, through which institutions previously considered requests, has been replaced with a duty to deal with requests in a reasonable manner, and within a reasonable period of time. ACAS’s statutory Code of Practice (the Code) provides guidance as to the meaning of ‘reasonable’ and is accompanied by ACAS non-statutory best practice Guidance.
The Code recommends that institutions should:
talk to an employee as soon as possible after receiving a written request, unless the request will be approved;
allow employees to be accompanied at any discussion;
consider the request carefully;
inform the employee as soon as possible in writing of any decision; and
discuss how and when the changes might best be implemented or allow an appeal.
Some practical issues
must specify which of the statutory reasons applies when refusing a request, but should consider also providing an explanation;
should be vigilant to see that the three month time scale for completion of the request process, including any appeal, is not exceeded without agreement;
must not, in considering a request, “discriminate unlawfully against the employee” (the Code). This could be tricky in practice;
should contemplate the possibility of a temporary agreement to work flexibly;
can consider a request withdrawn if an employee fails to attend a meeting and a rearranged meeting without good reason; and
should record any changes to employment terms in writing.
Shared parental leave
The detail and mechanics of the new shared parental leave regime, which will apply to employees whose babies are due, or who will adopt a child, on or after 5 April 2015, is now becoming available.
In essence, the mother of a new baby will be able to convert statutory maternity leave and pay into shared parental leave (ShPL) and shared parental pay (ShPP). ShPL and ShPP will also be available to adoptive parents and intended parents through surrogacy. ShPL and ShPP must be taken between the baby’s birth and first birthday,
Sweeping changes to family friendly rights
Education institutions have always embraced family friendly rights and flexible working but now need to be ready to accommodate far-reaching changes in these areas. The right to request flexible working has been extended and the new right to shared parental leave is more than just a modification of a procedure that institutions are already familiar with, it is a completely new regime.
Instep • Sweeping changes to family friendly rights
or within one year of adoption, and will be available for the two parents to share, provided they both satisfy the eligibility test and maternity (or adoption) leave and pay are ended early. The mother must take a minimum of two weeks’ compulsory maternity leave and pay (four weeks if she is a factory worker). This means that the earliest ShPL can start is two (or four) weeks after the birth.
So, if a mother ends her maternity leave and pay after 14 weeks, 38 weeks of the total 52 week entitlement will be available for ShPL and 25 weeks of the total 39 week entitlement to pay will be available for ShPP. The 38 weeks of ShPL and the 25 weeks of ShPP can therefore be shared between the mother and father if they are both eligible. They can decide between them how much leave each will take, and whether to take time off in turns or together.
An employee may take their leave all in one go or in separate blocks, although each period of leave must last no less than a week. An employee must give at least 8 weeks’ notice of any leave or to change a period of leave which has been previously notified. An employee can book more than one period of ShPL in one notice. However, there will be a cap of three notices to book or vary ShPL (with some exceptions) unless both employer and employee agree by mutual consent that a request will not count towards the cap.
This new shared parental leave regime marks a bold move away from the current highly gender-based and inflexible approach to parental leave. Institutions need to familiarise themselves with leave notification arrangements, alter their HR processes and train managers in readiness for the changes.
Although the move away from a rigid timetable for considering flexible working requests is welcomed, some institutions will worry about how to deal with multiple, competing requests. Although employees only have the right to ask their employer to consider flexible work arrangements, with a sanction of up to eight weeks’ pay if that duty is not complied with, a decision to refuse a request can in some cases lead to claims of discrimination. This has been illustrated by a number of recent cases:
In a 2012 case, a buyer with a large department store had been refused part time hours when returning from maternity leave. The Employment Tribunal found that the particular department within which the Claimant worked operated a practice whereby buyers should not work part time. However, the manager considering the request had failed to demonstrate why it had not been possible to allow part time working in this particular role or to set out for the Claimant what the employer could offer to her by way of part time working. In concluding that the approach adopted by the employer amounted to indirect sex discrimination, the Tribunal found that the manager concerned had “not really thought her position through” in refusing to accommodate the Claimant’s request.
Similarly, in a 2013 case involving an accountancy firm, the Employment Tribunal found that in refusing a request for flexible working by a male employee, the relevant manager had adopted “a subconscious view that flexible working on family grounds was suitable for female employees but not for male employees”. It found that this affected his approach to the consideration of the request, in comparison to the way in which he considered the request of a female employee. This was found to amount to direct sex discrimination.
It is therefore important that institutions ensure that managers considering flexible working requests have appropriate training, are clear of the legal framework within which they are operating and appreciate the potentially serious consequences of failing to manage such requests fairly. We have advised extensively in this area and would be delighted to assist institutions who may require training for managers or other support in relation to this issue.
For further information, please contact:
Partner, Head of the Eversheds’ Education Sector Group and the Education Employment Group
Tel: 0845 497 8151
Int:+44 161 831 8151
Instep • Anti-social behaviour on campus
Anti-social behaviour on campus
There is a fine line to be drawn between affording students the freedom to make the most of campus life by letting their hair down every so often and regulating conduct that crosses the boundaries of acceptable behaviour and criminal conduct. We explore in this article some of the legal and practical issues which can arise when dealing with anti-social behaviour and summarise good practice in its effective management.
Education and welfare
Anti-social behaviour which leads to police involvement can have career defining consequences for students, particularly where this results in a criminal conviction. There is an important role for institutions to play, including at the outset of the student relationship, in educating and seeking to ensure that students understand the potential consequences of becoming involved in anti-social behaviour.
Preventative measures, including effective policies and procedures
The key to mitigating the number of incidents of anti-social behaviour on campus and managing them effectively is for institutions to have robust, published and transparent student regulations which set out in clear terms:
the standards of behaviour which the institution expects of its students; and
the steps which the institution may take in instances of anti-social behaviour.
An institution’s student regulations provide a framework through which incidents of anti-social behaviour may be managed and a tool-kit for assisting the institution to deal with students fairly, lawfully and consistently. They also act to assist the institution in its ownership of matters, reduce the risk of external challenge and help guard against reputational risk
Police involvement and criminal conduct
Additional considerations will arise where anti-social behaviour amounts to, or may amount to, criminal conduct.
The relationship between internal disciplinary proceedings and proceedings brought by the police is a difficult one and each case will need to be considered on its merits. It may be sensible to seek legal advice, in order to ensure that the institution maintains an appropriate balance between fairness to the accused student and the safety of members of the institution.
Where the anti-social behaviour is such that it may amount to a criminal offence, the institution must take care to ensure that any steps it takes do not compromise criminal proceedings and are not used as an excuse to avoid police intervention where that would be appropriate. For the lesser serious criminal offences, for example shoplifting, where the student is prosecuted by the police, the institution may wish to consider adjourning its own hearing until the matter has been dealt with in court. There are pros and cons in following this approach; the advantage is that the outcome is known and the institution can consider that when determining the matter internally, whereas the key disadvantage relates to the potentially long delay that may result. If the offence is a serious one, for example physical or sexual assault, and the police deal with it, the institution may leave the matter to the courts, and consider suspension in the interim.
Institutions will wish to wish to work in partnership with the local police and community support teams and ensure that an effective and co-operative relationship, and a mutual understanding of the challenges arising from anti-social behaviour on campus, is maintained. The police and community support teams are a valuable resource, and one which institutions will wish to access for appropriate support, including attendance on campus, when issues of anti-social behaviour arise.
Institutions are increasingly having to deal with instances of anti-social behaviour involving students on campus, ranging from general rowdiness and alcohol fuelled excitement at one end of the spectrum to serious incidents of physical and sexual assault and drug dealing at the other.
Instep • Anti-social behaviour on campus
Prompt, proportionate and reasonable action
It is vital for institutions to deal with incidents of anti-social behaviour on campus promptly, proportionately and reasonably. This assists in reassuring other students and members of staff affected by the anti-social behaviour that the institution is dealing with the matter properly and thereby supports the institution in discharging the duty of care it owes to those individuals.
Institutions should ensure that allegations of anti-social behaviour are dealt with fairly and lawfully, including in accordance with the institution’s student regulations and the principles of natural justice. In essence, this involves:
undertaking a fair and thorough investigation into the allegations of anti-social behaviour;
informing students in writing, in good time before any disciplinary hearing, of the exact allegations made against them and providing copies of any relevant evidence to be relied on;
affording students a right to be accompanied by an appropriate representative during a disciplinary hearing (for example, a friend, family member or member of the students’ union);
ensuring that the student has a full opportunity to respond to the allegations during a fair hearing before a decision is made by an impartial decision-maker;
ensuring that any disciplinary sanction is proportionate to the anti-social behaviour in question; and
providing the student with a right of appeal against the disciplinary outcome.
Human rights issues
Dealing with anti-social behaviour on campus can give rise to interesting arguments regarding the application of human rights legislation. For example, students commonly cite Article 8 of the European Convention on Human Rights (ECHR) (right to respect for private and family life) in support of an argument that an institution has, in taking disciplinary action, unduly interfered in their private life and Article 10 ECHR (freedom of expression) and the right to freedom of speech to argue that an institution’s action is disproportionate having regard to their right to hold and express opinions. Institutions should balance these rights, where engaged, against the impact of the anti-social behaviour and the justification for taking action.
Reputational issues and press interest
Incidents of students misbehaving on campus are newsworthy and can generate significant media interest on a local, national and sometimes global scale, including in the written press, television and radio broadcasts and on social media. Institutions should be alive to the possibility that incidents will hit the press and be prepared to provide an appropriate response.
Where anti-social behaviour occurs in accommodation owned by the institution or where the institution is considering suspending or excluding students who reside in such accommodation, they should consider carefully the terms of the accommodation contract with the student. Institutions should remain mindful that the accommodation contract is discrete and distinct from the broader student contract and ensure that any action taken (including suspension and exclusion) is consistent with the terms of, and notice requirements contained in, the accommodation contract.
For more information, please contact:
Direct dial: 0845 497 7602
International: +44 115 950 7000
Direct dial: 0845 497 8281
International: +44 161 831 8281
Eversheds Education HR Summer School - 17 and 18 September 2014
Following the success of our 2013 event, we are again running our Education HR Summer School for 2014. The event is an opportunity to discuss some of the topical HR issues currently affecting those working in the sector. This will be a two day event taking place at the prestigious Corpus Christi College, Oxford.
The event will look at legal developments that impact upon your HR practices and will draw on experts with specialist insights to bring you up to date on recent trends which have an impact on workforce planning.
Please visit the link below for further details.
We are delighted to announce promotions of several key members of the Eversheds’ Education Team.
Many congratulations to Mark Taylor who has been promoted to Principal Associate and David Horan and Stephen O’Reilly who have been promoted to Senior Associate.
We continue to expand our operations in Africa by joining forces with leading Durban based law firm Knight Turner. We now have six offices in Africa, from Cape Town in the south to Tunis in the north.
If you are involved with a school converting to academy status or with an academy which has already converted, our specialist academy lawyers are on hand to help. Eversheds has assisted with over 220 academy conversions across the UK. For further information please see our website.
Instep • Eversheds’ news
Instep • Eversheds’ news
If you would like further information on anything appearing in the magazine or would like to learn more about Eversheds, please contact:
Head of education sector group
0845 497 8151
International +44 161 831 8151
HELPLINE 0870 240 5240
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