• Staff with less than two years’ service are still able to make tribunal claims in some cases.
• SBMs need to keep a close eye on the dates and conditions of any fixed-term contracts.
• There are key obligations on the hirer in relation to using supply agency staff.
The drivers for high turnover of teaching staff are many and varied. A House of Commons Library Briefing Paper from November 2021, ‘Teacher recruitment and retention in England’, provides a useful overview of some of the longer-term issues impacting on teacher recruitment and retention.
Unsustainable workload, government policy and a lack of support from leadership top the list of reasons given by those leaving the profession. Unsurprisingly, surveys show that teaching staff mobility is more likely where staff are younger, on fixed-term contracts, and are not in leadership positions. They also show that schools in deprived areas are more likely to lose staff to other schools.
The Covid pandemic may initially have put a damper on staff mobility, but it seems now that some Covid-related factors, such as the so-called “Great Resignation’ and higher levels of long-term absence are now putting further pressure on school staffing.
Supporting your stalwarts
Good induction, management, on-going support and appraisal are key to establishing and developing a happy and high-performing staff team. This can be a real challenge for established staff and leaders where colleagues are new or transitory. And this in turn increases the risks of employment law claims.
It can be easy to overlook the impact, particularly on your long-serving senior and middle managers, of an ever-changing and piecemeal staff team. These demands can lead to complex grievances, conflict between staff, work-related stress, and long-term absences. Proactive support for these lynchpins in your team is vital to reduce the risk of burn-out, resignation, formal grievances or claims.
Legal risks from staff with less than two years’ service
It is a popular myth that staff who do not have two years’ service cannot bring employment tribunal claims. Some of the claims which can be brought before that point are set out below:
• unfair dismissal claims based on ‘blowing the whistle’ or raising health and safety issues (NB the usual cap on compensation for unfair dismissal claims does not apply to these claims)
• claims relating to statutory rest breaks, working hours and holidays
• unfavourable treatment because of fixed-term employee status
• unfavourable treatment because of part-time worker status
• family-related and flexible working request rights
• discrimination claims based on a protected characteristic (such as sex, age, race, religion, sexual orientation or disability).
Discrimination claims can be brought by employees, workers, agency workers, job applicants and former staff, regardless of length of service. Compensation awards for discrimination are not capped and can include injury to feelings awards.
Can you be sure an employee has less than two years’ service?
It is not always obvious when a member of staff has accrued two years’ service. The general rule is that a break in employment of at least a week ending with a Saturday will break continuity of service. However, if there is a temporary cessation of work, for example where a school employee is not employed over the summer holiday, continuity of service is unlikely to be broken.
It is also important to consider the impact of the Redundancy Payments (Continuity of Employment in Local Government, etc.) (Modification) Order 1999 which means that staff who have moved from a local authority school or academy trust will bring with them their length of service for the purpose of calculating redundancy pay.
The risks of using fixed-term contracts
Many schools routinely employ new recruits, especially NQTs, on fixed-term contracts in the first instance. Performance management of staff on fixed-term/probationary contracts is a crucial tool in making an informed and reasonable decision about whether to terminate or renew the contract.
It is not uncommon for the demands of this process to be overtaken by the day-to-day hecticness of school life and for the end of the fixed term to come around with no paper trail to support a decision to terminate. A lack of supporting evidence for termination on capability, performance or conduct grounds will increase the risk of claims relating to ending the contract.
Schools should be alert to the termination provisions in their fixed-term contracts and ensure that notice is properly given in line with the contract. Some fixed-term contracts can be poorly drafted and do not include a mechanism for early termination. Schools that terminate before the end date could then find they are facing claims for unpaid wages to the end of the contractual term.
If the written fixed-term contract is not renewed but employment continues, it is likely that the contract will be found to have become permanent. Schools should ensure that they have good administrative systems which ensure that fixed-term contracts are reviewed well before notice must be given and that new contracts are issued where relevant.
Employers must have a fair reason to terminate employment, and this includes termination by reason of the fixed-term contract coming to an end. The reason might be redundancy, where there is a decreased need for employees to carry out a particular kind of work, or some other substantial reason such as the return of the substantive post-holder or the end of a specific project.
Staff who bring automatic unfair dismissal claims will argue that the reason for their dismissal was an unlawful reason. It can be difficult for an employer to defend such a claim where the reason for the dismissal is unclear or undocumented.
Fixed-term employees also have protections under the Fixed Term Employee Regulations. A claim could arise, for example, where an employee has been selected for redundancy because of their fixed-term status for example, where permanent staff were not included in the redundancy pool.
Using agency supply staff
High staff absence rates in recent times, along with longer-term recruitment and retention issues, have also led many schools to rely more heavily on agency staff. Although these staff are not direct employees of the school, local authority or academy trust, there are key obligations on the hirer in these arrangements. Understanding your obligations under the Agency Workers Regulations from the outset can help to limit claims arising.
The two key rights of agency workers which schools and trusts should be aware of are:
• the right to the same pay and basic working conditions as equivalent directly employed staff after a twelve-week qualifying period
• access to collective facilities and to information about employment vacancies from day one.
Liability for a failure to provide the same pay and conditions as a permanent member of staff after twelve weeks falls on both the agency and the hirer to the extent that they are responsible. Schools and trusts should ensure that they provide information to the agency about the pay and conditions of comparator staff so that the relevant terms and conditions apply from week thirteen.
In addition, there are statutory rules about responding to a formal request from the agency worker for information relating to an alleged breach of agency worker rights. Agency workers can also claim that the hirer has subjected them to a detriment for some reason connected to their agency worker rights. For example, where a decision to end the assignment is alleged to be because the agency worker asserted their rights under the regulations.
When does an agency worker reach twelve weeks?
To complete the qualifying period, the agency worker must work in the same role with the same hirer for twelve continuous calendar weeks. The twelve-week period includes any weeks where the worker has carried out work for the hirer. Breaks in service of less than six weeks will not break continuity.
The clock will also be paused where the agency worker is on sickness absence for a period of up to 28 weeks. If a tribunal determines that an assignment has been deliberately structured to avoid the twelve-week right, an additional award of up to £5000 can be made.
Importantly, where the hirer is an academy trust, the twelve-week period could include weeks where the agency worker was deployed in different schools across the trust. Central monitoring of agency worker deployment will therefore be required to ensure compliance with the regulations.
Proactive management will reduce the risks
School business managers can reduce the risk of grievances and claims by ensuring that managers are well trained, supported by the central team, and broadly understand the rights of staff working under different kinds of contracts. Proactive management and administration should enable forward planning, information sharing, and timely steps in line with contractual and statutory obligations.
• ‘Teacher recruitment and retention in England’, House of Commons Library Briefing Paper, November 2021: https://bit.ly/3sG92qr
• Agency Workers Regulations 2010: supply teachers, DfE, September 2016: https://bit.ly/3MjtS6S
• ‘Agency Workers Regulations 2010’, Department for Business, Energy & Industrial Strategy, October 2019: https://bit.ly/3IMyUqk
Use the following item in the Toolkit to put the ideas in the article into practice:
About the author
Alacoque is an employment lawyer working within Wrigleys’ education team. She has considerable experience of the realities of managing staff and resources within the education sector, having previously worked as a secondary school teacher and faculty leader before retraining as a solicitor. Alacoque edits Wrigleys’ monthly Employment Law Bulletin and regularly delivers webinars and training on employment law and HR topics.