As December looms we look back on the cases that have significantly impacted on the education sector over the last 12 months.
Holiday pay – term time workers
In Brazel v The Harpur Trust, the Court of Appeal ruled that term time only staff on permanent contracts of employment must receive at least 5.6 weeks holiday each year and employers can't pro-rate holiday to reflect the number of weeks they work. This means that many term time staff have been underpaid and could bring claims.
You cannot limit paid holiday to 5.6 weeks if comparable full time members of staff receive additional holiday, but you can pro-rate holiday in excess of 5.6 weeks. Our FAQ’s explain the detail.
The school has applied to the Supreme Court for permission to appeal – therefore the legal position may change.
Holiday pay – voluntary overtime
In Flowers v East of England Ambulance Trust, the Court of Appeal ruled that paid overtime and allowances linked to work that are received regularly should be included in holiday pay. This decision may affect support staff who are paid by the hour or receive additional pay for working overtime.
To correctly work out how much holiday pay a member of staff should receive, you must average their pay over the previous 12 weeks (or further back if some of these are not worked) rather than by reference to a formula - such as 12.07%.
If you average pay over a 12 month period, in circumstances where pay varies, you will have to check to make sure that staff have received the correct amount when they are on paid leave.
Working time and rest breaks
We know from the annual guide to teacher wellbeing published in November that many teachers and senior leaders work in excess of the legal maximum of 48 hours each week.
In CCOO v Deutsche Bank SAE, the Court of Justice of the European Union said that all workers had a fundamental right to limit their working hours and to take adequate rest to protect their health and safety. It said that employers should be required to set up ‘an objective, reliable and accessible system enabling the duration of time worked each day by each worker’ to be calculated - even for those who have signed a working time opt out.
Schools and colleges should take steps to accurately record working hours. This will help you to identify staff that are overloaded and give you the opportunity to support them before they become ill.
In 2017, the High Court said in Agoreyo v Lambeth that suspension isn't a ‘neutral act’ and if mishandled, could result in a successful claim for constructive unfair dismissal. It suggested that even in situations where the employee is suspected of very serious misconduct (including the alleged assault of children) organisations had to conduct a sort of 'mini investigation' before deciding whether to suspend.
The Court of Appeal disagreed and said that organisations need a ‘reasonable and proper’ cause (in other words a very good reason) to justify why they suspended a member of staff.
Whilst this decision reduces the legal risks of suspension, before doing so you should consider alternatives and have reasons for discounting these. Follow our other tips about suspending staff.
The Court of Appeal in Kostal UK Ltd v Dunkley and Others held that trade unions with collective bargaining rights cannot prevent employers approaching staff directly to try to agree temporary changes to their terms of employment where negotiations have broken down.
This means that you can, potentially, communicate directly with your staff if collective bargaining has reached an impasse - provided you are not attempting to undermine the entire process. It is, however, still unlawful to make an offer to your staff with the 'sole or main purpose' of avoiding their terms being determined by collective agreement or to try and encourage members to stop being represented by the union.
If you get this wrong, the financial penalties are high.
The union is seeking permission to appeal to the Supreme Court, therefore, the legal position may change.