Employment Law Updates - July 2015

Wednesday, July 15, 2015

As the holidays draw closer we thought we'd provide a brief update on recent developments regarding educational employment matters, please see a summary of these below.

1. Prevention of radicalisation and social media guidance for schools

On 1 July 2015 the DfE published the following:

Departmental advice on preventing children and young people from being drawn into terrorism (for school leaders and staff in maintained schools, academies and free schools and childcare providers in England).

A guide on how social media is being used to encourage travel to Syria and Iraq (for Headteachers and teachers in schools in England). The above guidance relates to the “prevent duty.” This duty was introduced as part of the Counter-Terrorism and Security Act 2015, which legally requires a range of organisations (including schools, Local Authorities and prisons etc.) to take steps to try to prevent people from being drawn into terrorism. The above mentioned documentation is for guidance only, to try to assist schools (and childcare providers) in carrying out the “prevent duty”, but which is not obligatory.

2. Amended safeguarding advice

The DfE published amended safeguarding advice on 1st July 2015 to coincide with the new “prevent duty” (as outlined above). The advice published complements the above statutory guidance

The guidance intends to assist schools by:

  • Clarifying what the prevent duty actually means for schools and childcare providers.
  • Outlining what they can do to help protect children from the risk of radicalisation.
  • Making clear what schools and childcare providers should do to demonstrate compliance with the duty.
  • Informing them about other sources of information, advice and support.

3. Holiday Pay and overtime

As you may be aware, from our previous Newsflash in November 2014, the Employment Appeals Tribunal (EAT) ruled on a very important case known as ‘Bear Scotland’. This case concluded that in certain circumstances overtime should be paid during holiday periods.

The effect of the EAT's ruling was that overtime should be paid in holiday periods, or more accurately that it will attract an entitlement to holiday pay in respect of the minimum 20 days of holiday staff are entitled to under European legislation (not the full 28 days of annual leave afforded to workers England) if the overtime is:

  • Compulsory or guaranteed; and/or
  • It is included in the employees' regular pattern of work (i.e. if they work the extra hours every week or most weeks, even if the number or hours worked is variable).

If overtime is only worked occasionally and on a purely voluntary basis then it can probably be safely excluded from the uplift for holiday pay. However you may take the view that it is easier to apply an uplift to all overtime (or no overtime, if it is only very rarely worked) rather than having to question the nature of the overtime worked on each occasion, and potentially face challenges from employees or unions. Although matters can of course be considered on an individual basis.

Following the above decision the Government announced regulations (which came into force on 1 July 2015) which introduced a two year ‘back stop’ for the majority of unlawful deduction for wages claims. This will include any claims for back-dated holiday pay, which may arise as a result of the Bear Scotland case. (This regulation also extends to commission, bonuses, fees etc. that are due to the employee, but of course are unlikely to apply to staff in the education sector).

The above regulations applies to any claims presented after 1 July 2015 and therefore if staff have not raised any queries in regards to such payments to date, in the event that they were successfully able to bring a claim, any claim would be limited to payment dating back two years prior.

Initially, it appeared that the Bear Scotland case was going to be appealed. This is however, no longer the case and schools may wish to consider whether any members of staff fall within the above category and if so, moving forward, whether any money is due to them.

4. Obesity may be a disability

At the start of this year, European case law held that obesity could be a disability. The European Court of Justice (ECJ) stated in certain circumstances i.e. when “obesity entails a limitation, which results in particular from a physical, mental or psychological impairment, that in interaction with various barriers may hinder the full effective participation of that person in professional life on an equal basis with other workers and the limitation is a long term one,” it could be a disability.

The European Court stated that it was a matter for national courts to determine whether the individual met the conditions for disability. However, in the event that the circumstances above are met, this could amount to a disability and Schools should bear this in mind moving forward.

5. Zero Hours Workers

On 26 May 2015 new regulations came into force prohibiting employers from restricting zero hour workers from working for other employers. This is something that is unlikely to come up very frequently within the education sector, but is however, something that Schools should bear in mind moving forward.

If you would like to discuss our Employment / HR Advisory service in more detail, please do not hesitate to get in touch.

"This is our first year of working with Judicium School Improvement. They have been both challenging and at the same time, very supportive. We are so pleased with the impact of their input, that we have already signed then up again for our next academic year.” Claire McCarron, Headteacher, Stockport

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