Legal Briefing: Can My Boss Make Me Go Back To the Classroom?

Schools and colleges re-open for all students as normal in September. The Department for Education (DfE) argues that most staff will be able to attend school where necessary protective measures set out in its guidance, particularly cleaning, hygiene and social distancing arrangements, are applied.

Following the government’s proposal that schools and colleges re-open for all students as normal in September, senior leadership teams now have to ensure the safety of both students and staff before their return to the classroom.

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      string(327) "... drugs. Further, it is reported that 250,000 students have taken drugs in the last month and 450,000 students have taken drugs in the last year. This legal briefing looks at the potential legal pitfalls that befall institutions around the use of drug testing.
Leadership Briefing 6.04(64)"
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      string(321) "... drug testing, both on a targeted basis as well as on a random one, within various institutions. Advice has also been sought on the potential legal pitfalls that befall institutions around this area.Testing generally takes various forms. There are random or so called suspicion free tests, which are still ..."
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      string(639) "The education environment is realising the increasing use of illegal drugs in the wider community. The latest report on substance abuse amongst teenagers in England, published in July 2010, reported widespread use of drugs amongst children as young as 11 and 15 with as many as 22% of pupils reportedly having taken drugs. Further, it is reported that 250,000 students have taken drugs in the last month and 450,000 students have taken drugs in the last year. This legal briefing looks at the potential legal pitfalls that befall institutions around the use of drug testing.
Leadership Briefing 6.04(64)"
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      string(5359) "DRUG TESTING – What can you do?The education environment is realising the increasing use of illegal drugs in the wider community. The latest report on substance abuse amongst teenagers in England, published in July 2010, reported widespread use of drugs amongst children as young as 11 and 15 with as many as 22% of pupils reportedly having taken drugs. Further, it is reported that 250,000 students have taken drugs in the last month and 450,000 students have taken drugs in the last year. These statistics are, to some, somewhat surprising.    Against this background, Thomas Eggar LLP has received a large number of queries from clients in private schools, Further Education Colleges and Higher Education institutions over recent months about the use of drug testing, both on a targeted basis as well as on a random one, within various institutions. Advice has also been sought on the potential legal pitfalls that befall institutions around this area.Testing generally takes various forms. There are random or so called suspicion free tests, which are still relatively unusual in the UK, and the more commonplace targeted testing of known or suspected drug users. The actual drug testing itself can take many formats including urine testing, hair drug tests, oral, and saliva drug tests and even surface drug detection wipes. However, aside from the technical issues surrounding drug testing of students there are also a number of legal issues that should not be underestimated.  The meaning of consentAny attempt to drug test in the absence of consent could be unlawful and technically a physical assault under Criminal law. Consent must be in writing and “informed”. In this context an educational establishment must make sure that they have a formal written policy on drugs testing. Reference to that policy will need to be incorporated into any pre-admission information, student offers, any post acceptance student contract and disciplinary rules and procedures. The policy should cover the consequences of opting out or withholding consent, namely suspension and/or expulsion.If dealing with students aged under 18 then consent is required from both the parents and the students (there continues to remain a legal dispute as to the extent to which a child under 18 can provide adequate consent in the absence of parental consent). Confidentiality concerns can be overplayed. However, it is imperative that all parties are aware of the parameters in this situation, namely that parents will be informed of any test results and contacted if a student refuses to be tested when the parents have previously agreed it can be carried out.   In contrast parental consent is not required in the case of students aged over 18 and indeed parental involvement raises specific confidentiality issues.  There has been widespread reporting of this type of situation involving a Higher Education institution and a reported breach of data protection rules. Criminal consequencesBoth possession and usage with intent to supply prohibited drugs are illegal. There is therefore an overarching obligation on any educational establishment to report any type of criminal activity. This may conflict with a desire to use a rigorous testing regime as a means of allowing a drug dependent student to remain on his or her course. Any apparent conflict will need to be clarified in any policy.Police involvement can also raise difficult issues. In the event that best practice is not forthcoming, the police should always be involved especially if drug use/possession is suspected. This is based on the DCSF drugs guidance for schools issued in December 2004.There can also be serious implications for individual members of staff which should be clearly documented in staff conduct policies and rules. For example, a member of staff who knowingly permits a student to smoke cannabis on an institution’s premises commits an offence. Whilst knowing another person is in possession of a controlled drug on an institution’s premises does not create an offence for management, if the drug is offered for supply to another then the person responsible for the premises commits an offence unless he or she acts to stop it. It will be clear that depending upon a particular situation then this can be a very thin distinction to draw. The difficulty from a criminal perspective is the evidence that can be amassed to determine someone’s alleged guilt of an offence or not.Other practical approachesThe introduction of drug testing should not detract from other practices such as locker searches or body searches, provided the individual agrees to such a search in the first instance.  Locker searches can take place without consent as they involve property belonging to the institution.  As with drug tests, however, they still need to be witnessed and properly recorded. Students may also be asked to hand over substances voluntarily but cannot be forcibly compelled to do so. That is where having a clear policy on such issues as well as reinforcing an institution’s stance can have a deterrent effect.Thomas Eggar LLP would be happy to advise institutions on such issues as well as drafting policies and procedures to reflect best practice.Matthew KellyPartner and Head of Education at Thomas Eggar LLP DOCVARIABLE  DocName GATWICK: 1116034_1"
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Leadership

DRUG TESTING – What can you do?

13 Oct 2011

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      string(304) "Tens of thousands of teachers across the country planned industrial action in June 2011 protesting at the recent Government plans to change the various public sector pension schemes. This legal briefing looks at the impact of public sector strikes.
Leadership Briefing 6.03(63)"
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      string(345) "... legal issues in relation to taking industrial action and what, if anything can happen to those individuals who fail to engage in the actual process.Legal RequirementsAny trade union that wishes its members to take part in industrial action must comply with formal notification and balloting requirements under the Trade ..."
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      string(304) "Tens of thousands of teachers across the country planned industrial action in June 2011 protesting at the recent Government plans to change the various public sector pension schemes. This legal briefing looks at the impact of public sector strikes.
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      string(5074) "Impact Of Public Sector Strikes – To Strike Or Not To Strike, That Is The QuestionTens of thousands of teachers across the country planned industrial action in June 2011 protesting at the recent Government plans to change the various public sector pension schemes.  Thousands of private schools in England and Wales were affected and staff in the National Union of Teachers (“NUT”) and Association of Teachers and Lecturers (“ATL”) voted to take industrial action. This is on the basis that whilst those individuals are not employed by the public sector per se, they may be members of public sector pension schemes.  Further, a number of individuals within those unions chose not to take part in the industrial action and/or “switch” unions that are not seen as proponents of industrial action. This article explores the legal issues in relation to taking industrial action and what, if anything can happen to those individuals who fail to engage in the actual process.Legal RequirementsAny trade union that wishes its members to take part in industrial action must comply with formal notification and balloting requirements under the Trade Union Labour Relations (Consolidation) Act 1992 (the “Act”). These requirements are prescriptive and there has been significant case law interpreting the Act on what has often been seen as minor technical irregularities in complying with the Act. Nevertheless, once those requirements are satisfied and certain time limits have been followed then it is open for a trade union to commence industrial action.  This has happened recently with both the NUT and ATL, amongst others, calling industrial action in relation to proposed changes to public sector pensions.The arguments for and against industrial action are highly politicised.  On the one hand, the Government has a significant financial deficit to overcome given that there will be an anticipated £9 billion shortfall in pension schemes within the next few years.  On the other hand, individuals see this as a further erosion of their contractual terms and conditions of employment.VoiceMany individuals within both the NUT and ATL have, however, sought to distance themselves from industrial action, arguing that going on strike and the financial losses suffered is often not offset by the benefits derived from the action in the first place.  Many individuals have sought to switch unions and join Voice, a trade union opposed to taking part in strike action. This has led to the argument that the union is weak because it fails to strike.  Voice’s stance, however, is that strikes are counter-productive and have a damaging effect on pupils’ education and inconvenience. Voice’s claim is that it believes in the power of negotiation, that is, the force of argument not the argument of force. It points out that the recent improvements in teachers’ pay and conditions have been achieved through negotiation and not through industrial action.So what are the consequences if an individual changes trade unions during a course of industrial action?  In short, nothing. All individuals have the right not to be subjected to any detriment for taking part in trade union activities. It is perfectly open to a trade union member to change trade unions at his or her behest. It is entirely open to an individual to be affiliated to a union without suffering from any detriment. Further, there is nothing that a trade union can do if a member chooses not to take part in that union’s activities.It seems that the numbers of those “switching” from one union to another is comparatively small although this may increase in the coming months and years if industrial action appears to be the norm. A question often arises as to what schools can do to ensure that individuals are not penalised in any way for not going on strike. The starting position is that it is an individual’s prerogative as to whether or not he or she goes on strike and takes part in official industrial action. If an individual’s union calls for strike action that does not necessarily mean that an individual has to take part in that action.  That individual should not be subject to any detriment from either their union of their employer for not doing so. Any detriment suffered to an individual by crossing a picket line would need to be dealt with by the appropriate authorities and if an individual was subjected to any form of physical harm by coming into work and breaking the picket line, that would ultimately need to be dealt with by the appropriate authorities.  ConclusionTrade union laws have changed radically over the past 20 years, culminating in more prescriptive requirements for unions to follow as well as the prevention of closed shops and an attempt to reduce widescale industrial unrest. It will remain to be seen whether those laws are revisited in the coming months and years as undoubtedly industrial action will increase as the public purse is squeezed yet further.Matthew Kelly, Partner, Thomas Eggar.CH: 1468447_11CH: 1468447_1"
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Leadership

Impact Of Public Sector Strikes

1 Sep 2011

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      string(372) "... of staff to have legal representation at internal disciplinary hearings. This has caused particular concern in the education sector as a number of the cases have involved teachers and related school staff. This legal briefing looks at the right to legal representation at disciplinary hearings.
Leadership Briefing 6.03(63)"
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Leadership Briefing 6.03(63)"
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      string(5150) "School Leadership Today – Article 1Right To Legal Representation At Disciplinary Hearings Recent years have seen several conflicting decisions about the rights of staff to have legal representation at internal disciplinary hearings. This has caused particular concern in the education sector as a number of the cases have involved teachers and related school staff.It is well established under the Employment Rights Act 1999 that an employee may be accompanied to a disciplinary hearing by a colleague or trade union official. Historically there has been a reluctance to extend this right to include legal representation. The legality of this approach was thrown into some doubt as a result of the impact of the Human Rights Act 1998 incorporating the European Convention of Human Rights into British law and directly enforceable against public sector employers such as schools. Article 6 of the European Convention concerns the right to a fair trial and provides that everyone is entitled to a “fair and public hearing”. It also states that “anyone charged with a criminal offence has the right to legal representation and to cross-examine witnesses” (Article 6(3)). Self evidently an internal disciplinary hearing is not a criminal matter, however, in certain cases the consequences for the effected employee can be extremely severe and as such the issue of legal representation has been raised notwithstanding the express terms of the Employment Rights Act 1999. Schools will be aware of the case of R (on the application of G) v Governors of X School [2011]. Disciplinary proceedings were brought against a music assistant at a voluntary aided school, following allegations that he had developed a sexual relationship with a 15 year old student. The music assistant was notified that he could be accompanied by a fellow work colleague or trade union official. If the allegations were proved true, the school was obliged to refer the employee to the Independent Safeguarding Authority who had the power to bar him from ever working with children again. There was therefore a strong possibility that his future work prospects would be seriously affected. The employee’s solicitor therefore requested that a member of the firm attend the hearing, to represent the employee. However, this request was denied. The allegations were upheld by the governing body. The employee appealed the outcome, again requesting that he be accompanied to the appeal with his legal representative. This second request was also refused and the employee’s dismissal for gross misconduct confirmed. The employee therefore brought judicial review proceedings on the grounds that the school’s refusal was a breach of his Article 6 ECHR rights. The High Court ordered the allegations be heard by a differently constituted disciplinary committee, at which the employee was to be given the right to legal representation.  The Court of Appeal upheld this decision and the school appealed to the Supreme Court where their appeal was allowed.In principle the Supreme Court agreed with the Court of Appeal that there could be situations where the outcome of proceedings (which do not of themselves concern civil rights) would have such a substantial or direct influence upon subsequent proceedings (which did concern civil rights), that protection under Article 6 should be given. However in the circumstances of this particular case, the Supreme Court took the view that the impact of the school disciplinary panel was not sufficiently great to require Article 6 protection. The Supreme Court ruled that the Independent Safeguarding Authority would conduct their investigation and would not give decisive weight to the outcome of the internal school disciplinary hearing. As a result it was the deliberations of the Independent Safeguarding Authority which was determinative of the employee’s civil rights and as such he was not entitled to be legally represented in the school disciplinary process. Whilst the decision will come as a relief to schools, it has come as a surprise to many commentators who assumed, based on the Court of Appeal decision that certainly public sector employees facing career threatening allegations would be entitled to legal representation. Schools may still feel it is prudent to offer such an option to effected staff but there appears to be no obligation to do so.G v X School is fact specific and does not lay down a general rule that Article 6 is never engaged in an internal hearing. The governing body of X School were not in a position of itself to prevent a member of staff from working in the educational sector. The case of a virtual monopoly employer such as the NHS might have a different outcome. Note, for example, the case of Kulkarni v Milton Keynes NHS Hospital Trust 2009, which effectively reintroduced the right of legal representation at internal disciplinary hearings for all NHS doctors and dentists who are the subject of serious disciplinary charges.Catherine WilsonPartner – Thomas Eggar LLPGA: 1356160_1GA: 1356160_1"
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Leadership

Right To Legal Representation At Disciplinary Hearings

1 Sep 2011

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      string(349) "structure with staff and members ofrecognised unions as a matter of good practice.Delegated functionsIf the functions relating to the appointment of staff outsidethe leadership group and all dismissals are delegated to thehead, the governing body should agree:the circumstances under which the delegated functionswill be removed from the headhow ..."
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      string(4614) "structure with staff and members ofrecognised unions as a matter of good practice.Delegated functionsIf the functions relating to the appointment of staff outsidethe leadership group and all dismissals are delegated to thehead, the governing body should agree:the circumstances under which the delegated functionswill be removed from the headhow that removal will be implementedwho may assume responsibility for the functions thathave been removed.The governing body should also determine whether andunder what circumstances delegated functions will berestored and how that restoration will be implemented.With effect from 1 January 2010, governing bodiesare obliged to ensure that any person who interviews anapplicant for any post has completed the safer recruitmenttraining; or, in cases where a selection panel or group hasbeen established to undertake such aresponsibility, that at least one memberof that panel has completed the saferrecruitment training.When a governing body approves,identifies, selects or recommends aperson – including school meals staffand supply teachers – for appointment,it must carry out safeguarding checks onthree items. These are the identity of theperson, their qualifications and their rightto work in the UK. The governing bodymust also obtain an enhanced criminalrecord certificate for the person before,or as soon as practicable after, theirappointment.If the new member of staff has livedoutside the UK, this certificate might notbe enough to establish whether they aresuitable to work in a school. In this casethe governing body must make whateverfurther checks the authority (in community,voluntary controlled, community specialand maintained nursery schools) orthe governing body itself (in voluntaryaided and foundation schools) considersnnn65www.teachingtimes.com n Vol 2.4School BusinessLegal Briefingappropriate, having regard to anyguidance issued by the Secretary ofState.The governing body mustcomplete the personal checksreferred to above, apart from theenhanced criminal record certificate,before a person is appointed. Inthe case of people supplied by anagency or employment business, thegoverning body must, before theyare permitted to work in the school,have received:written notification from theagency/employment business inrelation to that person:that it has made the checksreferred to in paragraph 5(a) (i)of Schedule 2that it or another employmentbusiness has applied for anenhanced criminal recordcertificate or has obtained sucha certificatewhether, if the employmentbusiness has obtained such acertificate before the personis due to begin work at theschool, it disclosed any matteror informationwhere the agency or employmentbusiness has obtained anenhanced criminal recordcertificate before the person isdue to begin work at the schoolwhich disclosed any matter or information, a copy of thecertificate.Before a person offered for supply by an agency oremployment business may begin work at the school, thegoverning body must check the person’s identity (whetheror not the employment business made such a check beforethe person was offered for supply). The governing bodymust keep a register with details of the safeguarding checksit has carried out in accordance with the provisions ofSchedule 2 of the regulations.The regulations stipulate that governing bodies mustadvertise any such vacancy for a headteacher or deputyhead or post in such a manner as they consider appropriateunless they have good reason not to. The DCSF guidanceadds that:the appointment process should be conducted in afair and open manner which does not contravene anydiscrimination legislation and includes safer recruitmentmeasuresnnnnnnthe governing body should consider the mostappropriate way of advertising the post. It should decidethe best way of reaching its target audience, taking intoconsideration the type of media to be used and the levelof exposure the advertisement will receivea decision not to advertise should only be taken if thegoverning body can demonstrate there is good reasonnot to and that it does not leave it open to challengeall decisions should be documented fully, as thegoverning body will need to demonstrate that it hasacted reasonably if challenged.The new regulations are, therefore, less restrictive andgoverning bodies will have more scope not to advertise,though the reasons for such a decision will have to be clearlyjustifiable.Stephen Szemerenyi is former head of Finchley CatholicHigh School, Pay and Conditions of Service consultantfor the Association of School and College Leaders (ASCL)and co-author of Running a School.nnn"
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Leadership

Staffing and the law

11 Oct 2010