As longstanding advisors to numerous schools within the sector we understand the sensitivities around the management of employment matters. We pride ourselves on getting to the root of the issue, working with our clients to identify their preferred solution and then advising and supporting them in the achievement of their objective at an acceptable cost and level of risk.
We also work with clients in the preparation and delivery of strategic projects such as variations to pay scales, harmonisation of terms and conditions, restructuring of the workforce, collective redundancies and outsourcing of services.
Should a school find itself facing Employment Tribunal proceedings our team (which includes a part-time Employment Judge), has considerable experience in defending claims throughout the UK.
Our advice is always clear and pragmatic.
We also offer a range of products, to include sector specific contracts of employment and associated employee handbooks, regular seminars and employment updates, as well as a quarterly newsletter.
Employment Partner Tom Watkins talks us through some of the issues we can assist you with.
Our governors are to hear an appeal against a disciplinary sanction. How should they prepare and conduct the hearing and what is the scope of their authority?
The governors can reject or uphold an appeal. If they reject an appeal they do not, unless the appeal procedure explicitly allows for it, have authority to increase the sanction.
Even where such explicit authority to increase exists, care should always be taken before relying upon it, given the right to appeal is intended as a benefit for the employee.
More generally, the following tips serve as a useful guide for those preparing to conduct an appeal:
- Obtain copies of the relevant documentation, investigation notes and decision letter as soon as possible;
- Ensure all relevant papers are reviewed in good time before the hearing;
- If necessary, request a summation of the grounds of decision from the disciplinary chair;
- If the grounds of appeal are vague or ambiguous, seek clarification, in advance of the hearing, from the appellant;
- Set an appeal date in the early course and write to the appellant to confirm details and remind them of their right, if they choose, to be accompanied by a work colleague or trade union representative;
- At the start of the hearing, give the appellant or their representative the opportunity to make an opening statement;
- Work through the grounds of appeal with them;
- Ask such questions as are necessary for you to understand the grounds of appeal;
- Seek to establish why the appellant considers the decision to be unreasonable, e.g. is it that the decision is too harsh, unjustified or that an inadequate procedure has been conducted?
- Seek to establish what outcome the appellant is seeking;
- Give the appellant or their representative the opportunity to make a closing statement;
- Consider whether any further investigations are necessary;
- Best practice is not to give a decision at the conclusion of the hearing but instead communicate in writing a few days later, setting out the basis for the decision.
We are conducting a disciplinary hearing and the teacher concerned has demanded the right to attend with their solicitor. Do we have to agree?
There is no general right to be accompanied by a solicitor or legal representative.
Instead, the right to be accompanied extends only to a work colleague or accredited trade union representative. That said, if there is a contractual right to be accompanied by a solicitor, then this would need to be complied with.
Similarly, if the outcome of disciplinary proceedings would have a “substantial influence” on a decision of a regulatory body that has the power to bar someone from their profession, then the employee may be able to successfully argue that they have a right to legal representation as a result of the Human Rights Act (more specifically Article 6 of the European Convention on Human Rights which affords an individual the right to a fair trial).
The matter therefore hinges on the nature of the allegation. If in doubt, take advice before responding to the request.
One of our teachers is the subject of a parental complaint. How best should we deal with this matter?
Firstly, it is important to establish the facts. What is the nature of the parental complaint? Do you have sufficient detail to investigate? What outcome is the parent seeking?
Whilst clearly you have a duty to the parent to investigate and respond, as an employer you also have a duty to your employee to provide reasonable support. This is an implied contractual obligation. It is essential therefore that you are not seen to prejudge the outcome of the investigation but rather set out to establish the facts. Whilst this investigation is ongoing you should send an acknowledgement of receipt to the parent to advise that you will be responding shortly.
The employee about whom the complaint relates should be made aware, as part of the investigation, of the complaint and given the opportunity to comment on the merits of it. Once the investigation has been concluded you will be in a position to respond to the parent setting out whether their complaint has been upheld and if so what action is to be taken. If it not upheld then it would be good practice to notify the teacher in question that you have informed the parents accordingly and that, as far as the school is concerned, there is no case to answer.
If the complaint is upheld or there is found to be some merit to it, then you should address the matter with the employee concerned either informally or formally in accordance with your disciplinary or capability procedures.