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When can I use a settlement agreement?

Settlement agreements are legally binding contracts which can be used to end an employment relationship on agreed terms. They can also be used to resolve an ongoing workplace dispute and can be an effective way of ending an employment relationship. They are entirely voluntary and neither employers nor employees have to enter into them if they do not wish to do so, or they are unhappy with the proposed content.

Settlement agreements can be a very effective way of managing exits from a school, whilst also managing the risks involved.

By offering a settlement agreement to an employee you are effectively buying off the risk of a claim. A settlement agreement can also a useful way to bind exiting employees to additional provisions on confidentiality and post termination restrictions, where necessary.

Employers need to be very careful when discussing potential settlement with employees, as a poorly managed conversation can in itself trigger claims. For further information on how to conduct these conversations, please see: Guidance on holding protected conversations in the document section.

You also need to be mindful that you must comply with the Academies Financial Handbook if considering making a payment under settlement agreement, particularly if any non-contractual element exceeds £50,000.

What does a settlement agreement need to contain?

In order for settlement agreements to be binding it is essential that the document is properly drafted and sets out the agreement between the parties accurately. A settlement agreement that does not comply with the legislative requirements is very unlikely to be enforceable.

Drafting settlement agreements is included within the fixed price for our retainer clients.  For all other schools we’d be happy to undertake this work for an agreed fixed price.  In order to put together the settlement agreement, we’ll need certain information from you. Please contact us and we’ll explain the information we need from you.

What if there are safeguarding issues relating to the employee?

You should seek legal advice on this issue, as you need to be particularly careful about entering into a settlement agreement where there are potential safeguarding concerns.

This may also be a child protection issue. Depending on the circumstances, it may not be lawful to enter a settlement agreement in view of the duties under the Children Act 1989 to protect and safeguard the welfare of children.

The statutory guidance issued by the Department for Education “Keeping Children Safe In Education” states that schools must safeguard and promote the welfare of children and deals specifically with allegations made against teachers and other staff, and sets out the duties of employers and employees in this context. It also addresses issues such as confidentiality and also managing exit arrangements (including resignations and settlement agreements).

Allegations of serious misconduct against a teacher may be referred to the Teaching Regulation Agency (TRA). All employers of teaching staff in schools, including an employment or supply agency, have a legal duty to consider whether to refer a case to the TRA when they have dismissed a teacher for misconduct, or would have dismissed them had they not resigned first. Additionally all schools must make a referral to the DBS if a member of staff has harmed, or poses a risk of harm to, a child, and has therefore been removed from working (paid or unpaid) in regulated activity, or would have been removed had they not left. Referrals should be made to both the DBS and the TRA in cases where there is alleged serious teacher misconduct involving harm or risk of harm to a child.

Again, we’d recommend specific advice is taken in relation to any concerns you may have.

How do I accept a resignation?

It is not up to the employer to “accept” an employee’s resignation, or otherwise- it is up to the individual to resign and inform the employer that this is the case. However, a resignation should be acknowledged by the employer and a letter confirming arrangements should be sent to the employee.

When accepting a resignation, schools should have regard to the Burgundy book which specifies what notice periods a school is entitled to receive from a teacher.

Do I need to have a formal performance policy in place at the school?

All schools should have a  performance management policy in place, which provide consistency and fairness and so staff members understand what is expected of them.  The ACAS Code of Practice must also be followed when dismissing an employee, see:

https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures

Performance Management policies are not routinely incorporated into contracts of employment  and they can be produced and implemented based on your specific needs and requirements. If a local authority policy has been inherited following an academy conversion, it is possible to seek to introduce a bespoke policy which may better suit your needs. This may require consultation with the recognised trade unions and care must be taken to establish whether the existing policies are contractual. We would recommend legal advice is taken before you take any formal steps.  For an example performance management policy and procedure see:

P13      Performance management policy and procedure

How does a performance management policy fit in with an appraisal system?

Schools are required to undertake annual appraisals, including annual pay progression decisions for teachers.   This process will set targets and objectives for the coming year.  In conjunction with regular informal meetings, these processes are helpful in identifying any training needs and areas of improvement before they become problematic.

Separate to the performance related pay process, schools may also need to tackle performance issues, such as underperformance, poor quality teaching or mistakes.  If performance does not improve then it may be appropriate to use the performance management policy and procedure, which may set out a performance improvement plan with formal targets for improvement and potential formal improvement warnings if performance does not improve to a required standard.  For further guidance please see:

P1: How to Guide – Managing Poor Performance.

Why is this important in schools?

You want your staff to perform to an acceptable standard to ensure the best possible outcomes for pupils.

You should also be aware of the guidance which Ofsted includes in paragraph 28 (page 11) of the School Inspection Handbook (2015):

  • Ofsted will usually expect to see evidence of the monitoring of teaching and learning and its link to teachers’ performance management and the teachers’ standards, but this should be information that the school uses routinely and not additional evidence generated for inspection.
If someone has less than 2 years' service with the school, do I need to follow the formal performance management procedure?

Employees with less than 2 years’ do not have protection from unfair dismissal, however care should be taken to ensure your records accurately reflect their length of service.

If an employee does have less than 2 years’ service, then it is technically possible to dismiss this short serving employee for poor performance without issuing any previous formal warnings.  However, you need to be mindful of whether this may cause industrial relations issues with the Trade Unions, and also mindful that there are employment claims, such as discrimination claims, which do not require the employee to have a minimum level of service, and therefore following the normal performance process may be a safer option.

Furthermore, recruiting and training staff to work in the school can be time consuming and costly so it is usually a good idea to raise the problem with the employee to give them an opportunity to address this before considering dismissal.

Our HR Protect for Schools performance management policy, P13: Performance Management Policy and Procedure applies to all employees but expressly states that employees with less than 2 years’ service can be dismissed without any previous warnings.

What is the procedure for dismissing someone for poor performance in school?

Normally this would involve inviting the employee to a meeting to discuss their performance, setting out your concerns and then setting a performance improvement plan (often called a “PIP”) which sets out the necessary improvements.  If the required improvements are not made then formal meetings are arranged, resulting in performance improvement warnings and ultimately, if there is no/insufficient improvement, the employee may be dismissed.  For a clear visual explanation of the process please refer to the following flowchart:

P2: flowchart of performance management process

The performance improvement process broadly involves:

  • Identify the performance issues
  • If the performance issues have not been addressed with the employee at all an informal discussion should usually take place to provide an opportunity to improve before moving on to the formal stage.
  • Invite the employee to a performance improvement meeting, setting out the performance concerns, see:

P3: Invitation to stage 1 performance improvement meeting

P7: Letter of invitation to short serving employee potential dismissal for poor performance

  • Hold the performance improvement meeting with the employee and allowing the employee to respond to the performance concerns and agreeing a timescale for improvement, see:

P15: Guide to Conducting Formal Performance Improvement Meetings

  • Deciding on an appropriate sanction, confirming this in writing, see:

P8: Written warning (poor performance)

P12: Termination of Employment Short Serving Employee (Poor Performance)

  • If the performance does not improve then invite them to a further meeting, see:

P4: Invitation to stage 2 performance improvement meeting

  • Confirming the outcome, see:

P9: Final Written Warning (Poor Performance)

  • If the performance still hasn’t improved invite the employee to a final meeting to consider their potential dismissal, see:

P5: Invitation to stage 3 performance improvement meeting.

  • Confirm the outcome in writing and give them the right to appeal, see:

P10:Termination of Employment (Poor Performance)

  • If someone exercises their right of appeal then invite them to an appeal meeting which will usually take place with Governors / Trustees, see:

P9: Invitation to Appeal Hearing

  • Hold the appeal meeting and decide on an outcome to the appeal, confirming this in writing, see:

P16: Guide to Conducting Appeal hearing

P11: Appeal Hearing Outcome Letter

Can we dismiss an employee for a one-off act of incompetence?

If the incompetence was wilful then it should be dealt with as misconduct, rather than a performance issue, and if this is gross misconduct then the individual can potentially be dismissed for this one-off act.

However, assuming that it was not intentional or wilful, then it will normally be difficult to dismiss for a single act of incompetence.  This is because the purpose of a performance improvement policy is to support the employee to improve and to allow them time and opportunity to improve.  Only if their performance does not improve can dismissal be justified.  Despite this, in very rare cases dismissal can be justified if the incompetence had particularly serious or hazardous consequences, but this will need to be considered on a case by case basis.  We would recommend you seek legal advice on this.

What do we do where an employee improves their performance but lapses once the warning has ended? Do we have to start again?

This depends on the circumstances. If there is a pattern of the employee’s performance dipping as soon as the warning period has ended, then it may be reasonable to extend the warning period.  However, if the underperformance is suspected to be intentional it may be better to deal with it as misconduct.

Does the employee have the right to be accompanied to any performance meetings?

Yes, the right to be accompanied, which applies to all employees, applies to formal performance management hearings.  This is because any action which can result in a disciplinary action, including dismissal, triggers the right to be accompanied and so the employee has the right to be accompanied by either a colleague or Trade Union representative. Where the employer fails to allow the employee to be accompanied to a disciplinary meeting and they subsequently bring a claim in the Employment Tribunal, this failure in itself attracts a separate award of compensation.

What are the most common mistakes which schools make in the performance management process or procedure?
  • Not accurately characterising the problem. There can be a cross-over between poor conduct (which should be dealt with under your disciplinary procedure) and poor performance.  It is therefore important to establish the cause of the problem at an early stage.  For example, poor teaching could be due to poor performance caused by a lack of training or support, or alternatively it could be due to laziness which would be a conduct matter and it is important to identify correctly what the issues are.
  • Not raising performance problems in a timely manner. This is important because raising the problem early makes it easier for the employee to improve their performance, which is often cheaper and less time consuming than recruiting a replacement to work in your school.  It also means that the school can make a decision about the employee’s future before they achieve 2 years’ service and also prove that the employee was given a chance to turn things around which is more likely to make any subsequent dismissal fair.

    Allowing poor performance to carry on for a considerable time without any intervention can also make it more difficult to dismiss, and is very frustrating for the employer and fellow colleagues who work alongside them in school!

  • Not obtaining sufficient evidence to support the poor performance. Documentary evidence is key and should be gathered and sent to the employee in the letter inviting them to the first performance management meeting.  The evidence should then be discussed and the discussion documented in the notes of the performance hearing(s).  A dismissal risks being unfair if the investigation into the poor performance was not reasonable.
  • Not giving the employee sufficient time or support to improve. This is fact sensitive and will depend on the nature of the poor performance, the employee’s explanation, their length of service, the training they have had, and whether there have been any changes to their work etc.
Can I contact my employee whilst they are off sick?

Yes. It is a common misconception that you cannot contact your employee whilst they are off sick, however schools should stay in contact with their staff to check on their wellbeing and to see if there is anything they can do to support them and facilitate a return to work.

Should the sickness absence continue then schools will need to be in touch to manage the absence through their Sickness Absence Management policy, which may also include getting in touch to organise Occupational Health appointments with the employee. See:

S10a: Letter of invitation to Keeping in Touch meeting

S22: Sickness Absence Policy and Procedure – School

S22(MAT): Sickness Absence Policy and Procedure – MAT

What happens if my absent employee refuses to meet with me or speak to me because they say they are unwell?

In this situation, if it is crucial that you speak with your employee (e.g. to progress an investigation) and it might be advisable to obtain medical advice from either their GP or Occupational Health for them to comment on the individual’s fitness to attend such a meeting.

Whilst the employee must give their consent to their employer obtaining medical advice from Occupational Health or a medical practitioner, for teachers it is a condition of continuing to receive contractual sick pay under the Burgundy Book that they agree to attend medical examinations requested by their employer whilst off sick.

You should ask whether the employee is well enough to engage in a conversation or meeting with you and if there is anything you can do to facilitate that discussion with the employee. It is going to be very difficult to progress the absence management procedure in the absence of engagement from the employee and seeking expert opinion on their ability to attend is often the best approach.

Should I meet with the employee on their return to work from sickness absence?

Yes. It is always good practice to arrange a return to work meeting with someone who has been off sick: whether that is a short term or long term sickness absence. That meeting gives you the opportunity to make sure that they are fit to return to work at school; whether they may need a phased return to work; whether they need any support or any adjustments making to help their ability to work and sustain attendance at school. It is also a good opportunity to find out if there are any underlying issues which you need to be aware of linked to their absence. See:

S6: Return to work interview form

S26: Guidance note – Keep in touch sickness absence meeting

Can an employee return to work before the expiry of their fit note?

A school may allow someone to return to work whilst they still have a live fit note – there is no longer a mechanism by which a GP can sign someone back as being “fit to work”. However, if your employee asks to return to work in those circumstances, you need to understand why and be satisfied that they are fit to return. Schools have a duty to protect their employee’s health and safety and it is likely to be appropriate to seek further medical advice and/or carry out a risk assessment before allowing someone to return prior to the expiration of their fit note. It the employee refuses to agree to this then schools are under no obligation to allow them to return until their fit note expires.

Can I dismiss someone who has a disability?

Yes BUT only if you have a genuine reason to do so and that reason is not because of their disability or because of something arising out of their disability and you have complied with your duty to make reasonable adjustments.

For example, you cannot dismiss someone who is unable to do their job because of their disability without having first investigated whether any reasonable adjustments could be made to enable them to do their job.

We recommend taking specialist advice in those circumstances as dismissals involving disabled employees may carry a high degree of risk.  This is especially the case in schools, where the potential compensation from a disability related dismissal claim could be very high (taking into account pension loss and loss of earnings).

I have an employee who has been off sick for over a year. What can I do?

Consult your Sickness Absence policy in the first instance. This should give you guidance.

If you do not have a policy or if the policy is not clear, the first step you will need to take is to investigate the reason why the employee is off work; how long they are likely to continue to be off work; whether they are any steps that can be taken to enable the employee to return to work at the school; will the employee be able to return to work after medical intervention; what is the impact on the school and teaching and learning and what is the impact on other staff in the school as a result of the employee’s continuing absence?

Once you have investigated these issues which must include speaking to the employee in question and is likely to involve seeking a medical advice, you can then consider the options. This may include taking steps to support the employees return to work, setting timescales for review or possibly considering dismissal if there is no evidence that the employee will be able to return to work in the near future and no reasonable adjustments which can be made. The individual should be encouraged to participate in this process as much as possible.

Prior to dismissing an individual for long term sickness absence you should invite them to a formal meeting, warning that the outcome may be the termination of their employment. The usual rules on the employee having notice of any meeting, being able to consider all the evidence and being represented by their Trade union or a work colleague apply.

We have a range of letters to support you in this situation, please see:

S3: Letter requesting employee consent to medical report

S4: Medical consent form

S5: Letter to GP/Consultant requesting medical report

S7: Invitation to meeting to discuss medical report

S11: Invitation to long term sickness absence meeting(s)

S12: Invitation to final long term sickness absence meeting

S23: Guidance note: conducting long term sickness absence meeting(s)

S24: Guidance note: conducting final long term sickness absence meeting (potential dismissal)

Should we ignore disability related absences?

Where an individual has high levels of short term sickness absence caused by a disability then schools will need to take the reason for their absence into account. You do not have to ignore disability related sickness absences altogether when managing someone’s sickness absence, however you do need to consider reasonable adjustments in allowing more absences prior to taking formal action than you would for an employee who is not disabled. Each case is different so we would recommend taking legal advice.

A school employee is off sick but one of their colleagues has seen on social media that they have posted pictures of themselves at a party. It's made me question whether they are genuinely off sick. What can I do?

First, do not jump to a conclusion that being at a party means that their illness is not genuine. A person’s illness may not affect them at all times. Sometimes attending social events can be part of a person’s recovery. Of course this depends on the what the illness is.

Before dismissing someone’s illness as not being genuine, we would suggest making enquiries of the individual concerned and seeking advice from a medical expert (such as OHS) if you are not convinced by the response.

How long should someone be off sick before I can dismiss them?

There is no right or wrong answer to this.

If you have a policy in place (as most schools will have), this should give you guidance on the process you have to follow before dismissing someone for their sickness absence. For short term absences the employer would usually be expected to issue a series of warnings before getting to the dismissal stage. The length of time absence can be sustained very much depends on the reason for their absence, the likelihood that they will be able to return to work and the impact on the business of their absence. A further consideration will be whether their sick pay entitlement under the Green Book or Burgundy Book (as applicable) has expired.  See:

S1: How to Guide: managing sickness absence in schools

S2: Flowchart

Can I dismiss someone who has a lot of short term sickness absence?

Yes. You will need to investigate why that person is taking a lot of short term sickness absence to make sure that there is no underlying health condition or medical reason which you need to be aware of. You will need to evidence what the impact of their absence has had on your business.

You will also be expected to have given the employee warnings that if their attendance does not improve, it could result in their dismissal. See:

S13: Invitation to short term sickness absence meeting (Stage 1)

S14: Invitation to short term sickness absence meeting (Stage 2)

S15: Invitation to short term sickness absence meeting (Stage 3)

S25: Guidance note: conducting short term sickness absence meetings

Can someone take holiday whilst they are off sick?

Yes they can. It may also help with their recovery. The employee will still need to obtain your approval to take holiday and consideration will need to be given to their contract of employment and whether they are permitted to take holiday during term time, or only during school holiday periods.

What is redundancy?

A redundancy situation exists where there is a reduction or disappearance in the requirement for a particular kind of work to be performed. This can either be at a particular school, or in the organisation generally in the case of a larger body such as a multi-academy trust. This could mean that a place of work is closing entirely, or just that the employer intends to reduce headcount in a certain role as their requirements for the work performed by that role have declined.

Frequently, redundancies are made as part of a cost-cutting exercise in response to a challenging budget position or a reduction in pupil numbers. However, it is not necessary for an organisation to be losing money in order for a redundancy situation to exist. A redundancy situation can exist in an organisation which is not losing money if there is a reduction in the need for a particular role.

Employers should also be aware that non-renewal of a fixed-term contract counts as a dismissal for employment law purposes and that it will normally be by reason of redundancy. Fixed-term employees with more than two years’ service may therefore be entitled to a statutory redundant payment if their fixed-term contract is not renewed, and employers should still consider how to follow a fair process in relation to the end of this contract (for example exploring with the employee whether there are any alternative vacancies which may be of interest to them).

How do I calculate redundancy entitlement?

Firstly, check your policies and procedures or any local agreements to see if there is any requirement to make enhanced redundancy payments.  Subject to that, statutory redundancy payments are calculated based on a formula which uses length of service (capped at 20 years), age and capped weekly pay. Employees need a minimum of two years’ continuous employment to be entitled. There is a useful Government calculator for working out redundancy payments, which can be accessed here:

https://www.gov.uk/calculate-your-redundancy-pay.

As we say however, some schools may have ‘enhanced’ redundancy schemes (which may be inherited from the local authority), where employees’ redundancy payments are calculated using a more generous formula, so best to double check this.

Employees who are being made redundant are also entitled to be given notice in accordance with their contract of employment (or statutory minimum notice, whichever is higher). For teachers, this will be the period of notice set out in the Burgundy Book – it is therefore important that the timing of any proposed restructures involving teaching roles are planned with these notice periods in mind.

An employee can be required to work during this notice period as usual, although they have the right to a reasonable amount of paid time off to look for alternative employment (for example to attend job interviews). In practice, some schools prefer to make a payment in lieu of notice in these circumstances in line with the employee’s contract of employment.

Finally, be mindful that in relation to support staff employees who are members of the LGPS there may be a requirement to pay a “pension strain cost” to the LGPS if they are over 55 years and made redundant.  This payment catch schools off guard and can be particularly expensive.

What is a redundancy selection pool?

A ‘selection pool’ is the group of employees who may be selected for any particular redundancy. For example, if a school has two cleaners and proposes to reduce that number to one, the selection pool would normally be the two cleaners.

 

If an employee is in a stand-alone role, they will generally be in a ‘pool of one’ on the basis that they are the only person who does the role which is at risk of redundancy.  In this case, there is no need for any selection process, as there is only one employee potentially affected.

Schools will often be asked to consider ‘bumping’ by employees who are at risk of redundancy. This means considering whether it would be reasonable to move the ‘at risk’ employee into another role in the business and make that post-holder redundant instead. This is a particularly tricky area which needs to be considered carefully if it arises. Whether it is potentially appropriate will generally depend on factors such as the level of similarity between the roles, the respective levels of seniority, whether there has been any cross-over or interchange between the roles previously and the respective length of service of the employees in question.

Identifying the correct selection pool is vital, as it is one of the aspects of a redundancy process which an Employment Tribunal will scrutinise. Each potential redundancy situation should be considered on its own merits when it comes to devising the selection pool. If the employee raises any dispute around the selection pool which has been used at a redundancy consultation meeting, you must take time to consider this carefully. If you disagree with the employee’s view, you should give them a reasoned explanation as to why you disagree as part of the consultation process.

How do I pick which employee is made redundant?

Once you have identified the appropriate selection pool (see above), you need to consider whether selection from within the pool is required. If there is a pool of one or if you are proposing to remove a role entirely, then you won’t need to do a scoring exercise as all employees in the pool will be potentially at risk of redundancy. Schools may also wish to ask whether any employees within the pool wish to volunteer for redundancy, in which case there may not be a need to make compulsory redundancies.

If you do need to carry out a selection exercise to determine which of the employees in the pool are placed at risk of redundancy, then you may need to use a form of scoring matrix. A scoring matrix should focus on objective scoring criteria which can be measured against statistics, records and documents. Organisations may have a redundancy policy which contains a selection matrix to be used in redundancy processes.

For an example selection matrix please see:

R13: Example selection matrix

Do I have to offer a redundant employee a vacancy within the school?

This depends on whether the employee is reasonably capable of performing any vacancy which exists. If they do not have the necessary skills or experience, it will not be suitable and therefore you do not need to offer it.  An example of this would be the potential redundancy of an English teacher, with a possible vacancy of a French teacher.  If the employee at risk of redundancy cannot teach (or presumably speak) French, then this role doesn’t need to be offered as an alternative to redundancy.  However, if they are capable of performing the vacancy, they are entitled to be offered it, in preference to any external candidate, or any internal candidate whose role is not at risk. If there is more than one redundant employee who wishes to take the vacancy, they should all be considered for this. You can either use a scoring matrix or a competitive interview process to select the successful candidate.

Where an employee is offered (and accepts) a vacancy, there is a statutory four-week trial period where both parties can assess whether the role is suitable. The employee can choose to resign within this trial period and claim a statutory redundancy payment if they wish.

Where an employee unreasonably refuses an offer of suitable alternative employment, they are not entitled to a statutory redundancy payment. However, case law is very strict on when a school can withhold a redundancy payment on this basis, and specific advice should be sought before doing so.

Does the employee have the right to be accompanied at any redundancy meeting?

The statutory right to be accompanied by a colleague or a trade union representative does not apply to redundancy consultation meetings. However, employers generally allow this as a Tribunal might consider that the consultation process is unfair if the employee is not allowed to bring a companion.

This is particularly true in an education setting, where is it often custom and practice for the Trade Unions to be closely involved in any proposal and consultation process.

What redundancy process should I follow?

The starting point is to check whether the school has a redundancy policy in place. This may have been agreed in conjunction with the recognised trade unions, and will typically involve a degree of consultation with the relevant trade unions at the outset of the process. If there is a policy in place, the school should follow this or it would likely be considered unfair.

If there is no redundancy policy, the redundancy process which schools should generally follow is:

  • Identify whether a redundancy situation exists (see above).
  • Identify the appropriate selection pool.
  • Inform the Trade Unions at an early stage of your proposals – to ensure you maintain good industrial relations. Provide them with information about the proposals.
  • If required, use a fair and reasonable selection matrix to decide which employees in the selection pool are ‘at risk’ of redundancy.

R13: Example selection matrix

  • Inform those employees that they are at risk of redundancy and invite them to an initial consultation meeting.

R3: At risk letter (no selection)

R4: At risk letter (with selection)

  • Hold as many consultation meetings as are necessary to fairly consider the redundancy proposal and the points raised by the employee during consultation.

R5: Invitation to further consultation meeting(s)

R15: Guidance on conducting first redundancy consultation meeting

R16: Guidance on conducting subsequent redundancy consultation meeting(s)

  • Explore whether there are any potentially suitable alternative vacancies within the organisation which the employee could perform.

R9: Confirmation of alternative employment

  • If you decide to proceed with the redundancy proposal, provide the employee with notice of termination.

R8: Confirmation of redundancy.

  • If the employee appeals against the decision to dismiss them due to redundancy, hold an appeal hearing and provide them with an appeal outcome. This would usually be held by Trustees / Governors.

R6: Invitation to appeal meeting

R9: Appeal outcome letter

R17: Guidance on conducting redundancy appeal meeting

For further guidance on the formal process employers need to follow see:

R2: Flowchart – Redundancy.

What are the most common mistakes employers make in a redundancy process?

Reaching a final decision before consultation has taken place

At the point that an employee is placed ‘at risk’ of redundancy, it is vital to remember that it is still a proposal. No matter how unlikely the school may consider it is that the redundancy can be avoided, they need to approach the consultation with an open mind as to whether the redundancy could be avoided. If the decision to make the employee redundant has been conclusively determined before consultation, this is very likely to make the dismissal unfair.

Not carrying out proper consultation with ‘at risk’ employees

It may sometimes be tempting for a school to rush through the consultation process, thinking that the outcome is obvious. However, this runs the risk of the dismissal being found to be unfair if the employee isn’t given a proper opportunity to ask questions and put forward counter-proposals. Where employees have alternative suggestions, employers should give careful though to these and respond properly, even if they seem obviously unworkable to the employer.

Not dealing with employees on maternity leave appropriately

The legal position and practicalities around redundancies and employees on maternity leave are tricky to manage and cause problems for many schools. Key points to be aware of are:

  • Employees on maternity leave can still be put at risk of redundancy if a redundancy situation exists. They should still be placed in a redundancy selection pool along with other employees if appropriate;
  • Where a group of employees which includes an employee on maternity leave are made redundant and there is a suitable alternative vacancy, schools must offer this vacancy to the employee on maternity leave. This is a rare example of where positive discrimination is not just allowed but required by employment law.
  • Careful thought needs to be given to the practicalities of an employee on maternity leave meaningfully participating in a redundancy consultation process. It may be that they require more information about the current situation and rationale, together with more time to prepare any counter-proposals and more notice of consultation meetings.
  • Employees are still entitled to the remainder of their statutory maternity pay if made redundant, unless they start another job in the meantime. Consideration should be given as to whether it would be reasonable to delay the redundancy to see whether the situation improves or a new suitable vacancy arises during that time.
When do I need to do collective consultation?

The collective consultation obligations apply where an employer is proposing to make 20 or more redundancy dismissals at an establishment in any 90-day period. The consultation requirements are strict and there are severe penalties where an employer doesn’t fully comply.

That said, any redundancy policies which have been agreed with recognised trade unions will typically require some collective consultation with the relevant unions at the outset of the process, even where there are fewer than 20 proposed redundancies.

For more information on collective consultation, please refer to our

FAQs on Collective Consultation.

For further guidance on redundancies please see:

R2: Flowchart: redundancy and R1: How to Guide: Redundancy

Do you always need to follow a formal process when disciplining someone?

Some conduct issues can be dealt with in an informal way by speaking to the employee concerned and making them aware that their conduct is not acceptable. However, where the informal stage has not resolved the issue, or in more serious matters, you will need to take formal action. Formal action requires that a proper process is followed by the school, and if a proper process is not followed then the action is unlikely to be fair and may result in an Employment Tribunal claim or Trade Union action.

For further guidance on the formal process employers need to follow see: Flowchart: Disciplinary and Dismissal

Is it right you can dismiss someone for any reason if they are a short server?

It is correct that short serving employees (i.e. those with less than 2 years’ service at your school) do not have protection from unfair dismissal in the same way that those employees with 2 years’ service. However, this does not mean that short serving employees can be dismissed without risk in all circumstances.

Certain claims, including for example discrimination, health and safety related dismissals and whistleblowing (to name but a few) do not have a minimum service requirement.

For a full list of claims someone can bring if they have less than 2 years’ service see: Claims: no qualifying service requirement

If I want to discipline someone do I need to have a policy in place to enable me to do so?

Whilst it is not a mandatory requirement for schools to have a disciplinary policy in place, most will of course already have one.   It can be extremely helpful when dealing with disciplinary matters to have a good disciplinary policy which sets out what is expected of the employee and employer in these situations. It is crucial that all disciplinary policies incorporate the provisions of the Acas Code of Practice on Disciplinary and Grievance Procedures as a minimum:

https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html

As a side note, neither the Burgundy Book nor the Green Book contain contractual disciplinary procedures. Disciplinary policies and procedures. It is common for academies or multi-academy trusts to seek to introduce their own disciplinary policy after they become an Academy, in place of the existing local authority policy. This may require consultation with the recognised trade unions and care must be taken to establish whether the existing disciplinary procedures are contractual – so legal advice should be taken.

For a compliant school specific disciplinary policy please see:

D20: Disciplinary Policy and Procedure – school

D20(MAT): Disciplinary Policy and Procedure – MAT

D21: Staff code of conduct – school

D21(MAT): Staff code of conduct – MAT

Does instant dismissal mean I can sack someone on the spot for gross misconduct?

No. Where allegations of gross misconduct arise these should be properly investigated and the individual taken through a fair disciplinary process. If this does not happen then there is a real risk that what would have been a fair dismissal is turned into an unfair dismissal by the lack of process followed. This may mean a school being on the wrong end of an unfair dismissal claim in the Employment Tribunal, even though the individual had committed gross misconduct.

For all disciplinary matters (not just instances of gross misconduct) it is essential that a fair and proper process is followed. The disciplinary process broadly involves:

Conducting a reasonable investigation

D22: Guide to conducting investigation meetings

D4: Invitation to investigation meeting

D5: Invitation to investigation meeting (witnesses)

Inviting the employee to a disciplinary hearing, setting out the allegations against them, and allowing them the opportunity to put forward their version of events. See:

D6: Invitation to disciplinary hearing: potential written warning

D7: Invitation to disciplinary hearing: potential final written warning

D8: Invitation to disciplinary hearing: potential dismissal following previous warnings

D9: Invitation to disciplinary meeting: potential dismissal for gross misconduct

Hold the disciplinary hearing with the employee and see what they have to say, see:

D23: Guide to conducting disciplinary meetings

Decide on an appropriate sanction, confirming this in writing, see:

D12: Informal Management Letter of Advice

D13: Written warning

D14: Final written warning

D15: Dismissal with previous disciplinary warnings

D16: Letter to confirm dismissal – short serving employee

D17: Gross misconduct dismissal

D18: Letter to confirm no further action

If someone exercises their right of appeal then invite them to an appeal hearing, see:

D10: Invitation to appeal meeting

Hold the appeal hearing and decide on an outcome to the appeal:

D24: Guide to conducting appeal meeting

D19: Appeal outcome letter

Do you always need to allow an employee to be accompanied to a disciplinary meeting?

All employees are entitled to be accompanied to a disciplinary hearing, that may result in disciplinary action (including dismissal) being taken against them, by either a colleague or Trade Union representative. Where a school fails to allow the employee to be accompanied to a disciplinary hearing and they subsequently bring a claim in the Employment Tribunal, this failure in itself attracts a separate award of compensation.

As a side note, there is no automatic legal right for an employee to be accompanied to a fact finding / investigation meeting. However, most schools allow this and your policies and procedures may provide the employee with this right.  If so, you may wish to amend your policy, so that this right is given “provided there is no unreasonable delay”.

What are the most common mistakes employers make in a disciplinary process?

Not investigating the allegations properly or reasonably

Often schools are found by Employment Tribunals to have investigated only the facts in support of the allegations, not those which support the employee. A fair dismissal needs to be balanced and based on a reasonable investigation and if the employer cannot demonstrate that this has taken place then the dismissal will be unfair.

Not informing the employee ahead of the disciplinary process what the allegations against them are, or not setting out the allegations in clear terms.

The allegations as set out in the letter of invitation to a disciplinary meeting are of crucial importance. It is a principle of natural justice that an individual must be aware of the allegations against them in order to be able to properly defend themselves. Make sure that the allegations in the letter of invitation properly capture, in plain English, what it is they are accused of doing, when this is alleged to have happened, and where this happened.

Not informing the employee that one potential outcome of the disciplinary hearing may be their dismissal.

Where an individual may be dismissed following a disciplinary hearing they need to be warned in advance that this is a potential outcome. Informing someone that this is the case means that they cannot argue at a later point that they did not fully understand the seriousness of the matter, or the potential outcome of the disciplinary hearing.

Inconsistent treatment of employees

Clearly, each case turns on its own facts, and there may be reasons why a school chooses to impose a lesser disciplinary sanction on a particular employee than it does on another. However, schools need to be very wary of being capable of justifying any differences in treatment. If the decision is not capable of justification then it may give rise to an unfair dismissal claim, and potentially some form of discrimination claim if the individual can show that the difference in treatment can be explained by their protected characteristic(s).

What can happen if the employer gets the disciplinary process and procedure wrong? What is the unfair dismissal risk?

A dismissal which is unfair, either because the reason for dismissal is not fair, or the incorrect procedure was followed, can be expensive. Claims for unfair dismissal are very common in the Employment Tribunal and schools can be awarded as much as 12 months’ gross salary in compensation, plus a basic award calculated on their age and length of service. Failure to follow the Acas Code of Practice can also result in a 25% uplift in any compensation awarded. These awards relate to ordinary unfair dismissal claims only; other claims, such as whistleblowing or discrimination, are uncapped and can attract much higher potential awards of compensation.

For further guidance on the appropriate disciplinary/dismissal process please see:

Flowchart: disciplinary and dismissal and D1: How to Guide: Disciplinary and Dismissal

Does the type of school you are, and the role I am recruiting for, impact the recruitment process?

Yes, very much so, and taking specific advice is recommended.

In maintained schools, responsibility for decisions relating to appointments are set out in the School Staffing Regulations.

Specifically:

  • A panel (of at least three governors) is responsible for appointing the head and deputy headteacher;
  • The Governing body (or a committee or headteacher to which / whom the Governing body has delegated responsibility) is responsible for appointing other teachers and support staff;
  • The Local Authority (unless otherwise agreed) is responsible for appointing school meals staff.

In community, voluntary controlled, community special and maintained nursery schools, the local authority (as the employer) is then responsible for actually making the appointment.

For maintained schools, the School Staffing Regulation also prescribe the process, which varies depending on whether you are recruiting a headteacher or deputy headteacher, other teachers or support staff.

On the other hand, the proprietor of an independent school or academy is responsible for appointing staff in the same way in which any employer may appoint staff, and the process, which can usually be found in an academy’s articles of association, can be less prescribed.

Do I need to document the recruitment process?

Schools which properly document the recruitment process to establish a paper trail will be better placed to demonstrate compliance with the School Staffing Regulations (where they apply) and consideration of the public sector equality duty.

More generally, the paper trail can help justify decisions taken, to show that a selection decision was based on objective evidence of an applicant’s ability to do the job (rather than on assumptions or prejudices) and to show that they took reasonably practicable steps to prevent unlawful discrimination or harassment.

Can you discriminate against someone during the recruitment process?

Protection from discrimination applies to job applicants in the same way as it does actual employees so, from a risk point of view it is essential that employers avoid any form of discrimination during the recruitment and appointment process, even if this is done advertently.

 For further information on discrimination see:

DIS1 How to Guide: Avoiding Discrimination

What should be included in a recruitment job description?

Before advertising a vacancy, a written job description for the role should be compiled. The job description should cover:

  • the main purpose and objectives of the job;
  • the place of the job holder in the organisational structure;
  • the main tasks and responsibilities of the job holder; and
  • any associated tasks.

When compiling a job description, ensure that an appropriate job title is used that does not show any premeditated bias and that the job is accurately described.

 

You may also wish to prepare a person specification detailing the experience, know-how and qualifications, skills, abilities and behavioural attributes necessary to perform the duties in the job description. Criteria in the job description or specification must not be discriminatory and employers should be able to justify any necessary or desirable criteria against the job in question.

Do I need to advertise job vacancies externally?

It is generally considered best equal opportunities practice to advertise all vacancies externally as this will ensure that as wide a pool of candidates as possible is reached. This will not always be appropriate however, for example, in a redundancy situation, where an employer is obliged to consider what alternative employment is available within the organisation for employees who are at risk of redundancy.

For further information on redundancy see:

R1 – How to Guide – Redundancy.

What should be considered for job applications?

You should consider the format in which applications should be submitted. Adopting a standardised process, whether through using an application form or requesting CVs is recommended so that applicants can compete on equal terms and to help the School show that applicants have been assessed objectively.

Be prepared to react where reasonable adjustments need to be made for disabled candidates, e.g. providing information in large print, braille etc. so they are not disadvantaged in the recruitment process. For further information on reasonable adjustments see

DIS3 – Guidance – Disability Discrimination.

What should a School consider when selecting and interviewing job candidates?

Firstly, you should consider whether the School Staffing Regulations apply to you and, if they do, you should ensure that the prescribed process set out is followed.

Independent schools and academies should also check their articles to determine what process they should follow (if prescribed).

Generally, there are a number of processes available to you when assessing and selecting the ideal candidate for the job advertised for example, shortlisting, selection tests, assessment centres and interviews.

There are however important nuances in the recruitment process within the education sector, such as where a vacancy is for a headteacher or deputy headteacher.  In that situation, the board of a maintained school will need to put in place a selection panel of at least three governors – one of whom must have completed safer recruitment training – to select candidates for interview (and, for most types of maintained schools, notify the local authority of the names of the candidates), interview applicants and, if the interviews are successful, recommend a candidate for appointment as headteacher to the board of governors.  This is also good practice in academies, and academies should review their articles of association to determine the process, including the size of any selection panel, that might be prescribed by their articles.

All selection processes undertaken must be fair, consistent and result in the appointment of the best person for the job.

You should ensure that, as far as possible, arrangements for holding tests or interviews, or using assessment centres, do not put any candidates at a disadvantage in connection with a protected characteristic. For example, where the dates or times coincide with religious festivals.

Schools are not required to make changes to recruitment processes in anticipation of applications from disabled people. However, if a School knows, or could be reasonably expected to know that a particular disabled person is, or may be, applying for a role and is likely to be substantially disadvantaged by the premises or arrangements, then reasonable adjustments must be made. For example, if an applicant is a wheelchair user you should make sure that the premises where the interview is being held are accessible in order to remove any disadvantage that individual may suffer because of their disability.

Schools should also consider whether any tests could be indirectly discriminatory.

What data protection issues arise during the recruitment process?

All documents collected in the recruitment process which include the personal data of applicants must be processed in accordance with data protection legislation, in the same way as is necessary for the personal data of current employees within the School.

Job applicants should be made aware of how the School will process the information they supply, for example via a statement in the job advert and how long it will be held for. For a template privacy notice, please see:

REC11: GDPR candidate privacy notice.

For further details on handling data during the recruitment process, please see:

REC6: Guidance: retention and erasure of employment records.

Can a School use pre-employment health questionnaires in recruitment?

Generally, employers are not permitted to ask about the health of a job applicant before offering a job to them, except in a limited number of situations.

When a job offer has been made, it can be made conditional on satisfactory health checks, but schools must not discriminate against job applicants having received the results of such checks. Health checks would usually only be appropriate where relevant to the job or where reasonable adjustments need to be considered for disabled applicants.

However, as a School, you need to verify an applicant’s mental and physical fitness for the role before appointing them.  A job applicant can be asked relevant questions about disability and health in order to establish whether they have the physical and mental capacity for the specific role, but this should be done with caution, to reduce the risk of a claim of discrimination.

For more information on pre-employment health questionnaires, please see:

REC3: Guidance: pre-employment health questionnaires.

What should be included in a job offer?

After identifying the applicant who is to be offered a job, a written job offer should be sent to the person, see:

  • REC7: example offer letter – permanent post
  • REC8: example offer letter – fixed term post

You should ensure that offer letter is consistent with the contract of employment subsequently provided. You should also make the job offer conditional on matters such as references, DBS checks, proof of right to work and qualifications.

When should references be obtained in the recruitment process?

References should not be obtained until after a selection decision has been reached. This is to ensure that the selection decision is based strictly on objective criteria and is not influenced by other factors, such as potentially subjective judgments about a candidate by referees. It is also good practice to send a referee copies of the job description and person specification, requesting evidence of the applicant’s ability to meet the specific requirements of the job.

The information requested in a reference can vary. It is common to ask for information such as the applicant’s dates of employment, current role and past roles, salary and disciplinary record. However, employers may be unwilling to give all of this information and some will have a policy of only confirming factual information such as dates of employment and role.

References should always be obtained from the candidate’s current employer. Where a candidate is not currently employed, verification of their most recent period of employment and reasons for leaving should be obtained from the school, college, local authority or organisation at which they were employed.

Any information about past disciplinary action or allegations that are disclosed should be considered carefully when assessing the applicant’s suitability for the post.

For full guidance on receiving references, see:

REC4: Guidance: providing and receiving employment references.

Is a school required to provide a reference?

Generally (aside from some very specific exceptions) there is no legal obligation on schools to provide a reference for a current or former employee. However, a consistent approach (whether or not to give references and what to include in them) is recommended, particularly to avoid allegations of discrimination.

If a reference is provided, the school owes a duty to take reasonable care to ensure that it is true, accurate and fair and does not give a misleading impression. Failure to do so could give rise to claims against the reference provider.

Are all schools required to perform right to work checks?

All schools have a duty to prevent illegal working by carrying out prescribed document checks on candidates before employing them to ensure they have the right to work in the UK.

You are expected to keep a record that they have been carried out and repeat them in respect of any individuals who have time-limited permission to work in the UK, prior to the expiration of that permission.

It is a criminal offence if a school employs an illegal worker and knows, or has reasonable cause to believe, that the person has no right to do the work in question in the UK.  It is a civil offence if you employ someone who does not have the right to carry out the work in question, which can be punished by a penalty of up to £20,000 for each individual who does not have the right to work.

A school will be excused from paying a civil penalty if they are able to show that they complied with the prescribed right to work checks and retained records to prove that those checks were completed correctly. For further information, see:

REC5: Guidance: right to work checks.

In order to avoid claims for discrimination, Schools should carry out the same checks on all prospective employees and not just those who appear to be non-British.

What other pre-appointment checks are necessary in the School sector?

Part three of the Department for Education’s statutory guidance for schools and colleges, “Keeping Children Safe in Education” addresses “Safer recruitment” in the education setting.

Additional to your usual right to work checks, when appointing new staff, schools and colleges must usually:

  • obtain (via the applicant) an enhanced DBS certificate (including barred list information, for those who will be engaging in regulated activity)
  • obtain a separate barred list check if an individual will start work in regulated activity before the DBS certificate is available
  • verify the candidate’s mental and physical fitness to carry out their work responsibilities
  • if the person has lived or worked outside the UK, make any further checks the school or college consider appropriate
  • verify professional qualifications, as appropriate. The Teacher Services’ system should be used to verify any award of qualified teacher status (QTS), and the completion of teacher induction or probation.
What is the "Single Central Record"?

Schools and colleges must maintain a single central record of pre-appointment checks on all staff, including teacher trainees on salaried routes, agency and third party supply staff who work at the school and, (for independent schools), all members of the proprietor body. In the case of academies and free schools, pre-appointment checks need to be maintained on a single central record for members and trustees of the academy trust.

For further information on recruitment see:

REC1 How to Guide: Recruitment

 

Does a contract of employment need to be in writing?

No, but all employees and workers must be given a statement of their terms and conditions on or before the employee’s first day of work.    This statement, also known as a ‘section 1 statement’, must contain the information specified by section 1 of the Employment Rights Act 1996, including the names of the parties, the date the employment started etc. Further details of what needs to be included in the statement can be found at: https://www.gov.uk/employment-contracts-and-conditions/written-statement-of-employment-particulars

Failure to provide a complete and accurate section 1 statement can permit an employee to ask a tribunal to determine what the appropriate term and conditions and, in some circumstances, permit an employee to issue a claim worth up to 4 weeks’ wages.

We recommend that the section 1 statement is provided by way of a written contract of employment as the contract can include additional terms.  These terms can provide clarity for the parties and provide additional rights and responsibilities which are relevant to the particular role.  For example, a contract for a senior employee would be different to a junior employee as it may contain a company car clause, post-employment restrictions etc. which are less likely to be needed for a junior employee.

An important consideration for Schools is whether the section 1 statement or contract of employment should incorporate collective agreements (such as the Burgundy Book and School Teachers Pay and Conditions documents for teaching staff and the Green Book for support staff).

Commonly these collective agreements are incorporated and should therefore be taken in to account when considering the contractual rights of school staff.

For further guidance on contracts of employment see:

C1: How to Guide: Contracts of employment.

How do I know what type of contract to use?

You will need to consider the employee’s seniority, whether their role is permanent, full-time or part-time, whole time or term time only, or whether their role is based on zero hours.  You will also need to consider how they will be engaged e.g. as an employee worker, apprentice or consultant and whether (although unlikely in the education sector) you require the staff member to be bound by any post-employment restrictions.

For a full list of the types of contracts see: C2: Which contract to use?

The full list of contracts which are available to HR Protect clients is available below:

C3: Contract of employment: standard

C4: Contract of employment: part time

C5: Contract of employment: fixed term

C6: Contract of employment: term time only

C7: Contract of employment: senior (with restrictions)

C8: Contract of employment: apprenticeship agreement (English approved standard)

C9: Contract of employment: apprenticeship agreement (Framework)

C10: Contract of employment: casual worker agreement (zero hours)

C11: Consultancy agreement (individual): for use where there are Group Companies

C11a: Consultancy agreement (individual): for use where there are no Group Companies

C12:  Consultancy agreement (limited company): for use where there are Group Companies

C12a: Consultancy agreement (limited company): for use where there are no Group Companies

C13: Contract Questionnaire

Can we still use zero hour contracts?

Yes, zero hour contracts are still permitted but since May 2015 exclusivity clauses i.e. clauses which prevent a worker from working for someone else, have been prohibited and rendered unenforceable.  A legally compliant zero hours contract can be found at:

C10: Contract of employment: casual worker agreement (zero hours)

How can I change an employee's terms and conditions?

Once the terms of employment have been agreed they are legally binding and can only be changed in limited circumstances.  Often the easiest way to change an employee’s terms is to get them to agree to the change.  Where the change is beneficial, for example, a pay increase, the employee will be happy to agree to the change.  However, sometimes a School may seek changes that the employee is not happy with.  In those circumstances, the School may be able to rely on the contract if it permits the change or if necessary, or it may have to go through a formal process of consultation, potentially on a collective basis with trade unions, or make a unilateral change. Both of these latter options bring risk and you should speak to your legal advisor in these circumstances.  For further information please see:

C1: How to Guide: Contracts of employment

 

What is the purpose of an appraisal?

The purpose of an appraisal is to:

  • Review an employee’s ongoing performance;
  • Provide praise and encouraging feedback on employee’s strengths and achievements;
  • Identify areas of development and improvement; and
  • Set objectives, expectations and development areas.

Appraisals provide an opportunity for employees to learn by reflection and take ownership by proactively evaluating their performance. There should be no surprises for the employee i.e. if there are any concerns with an employee’s performance, these should be brought to attention as they arise, and not held back until the employee’s next appraisal.

Do I have to conduct an appraisal with an employee?

Outside of the education sector, no, it is not a legal obligation to carry out an appraisal, but given the clear benefits to doing so set out above, failing to do so is a missed opportunity and may lead to issues building up and not being resolved.

In the education sector, appraisal arrangements are set out in the Education (School Teachers’ Appraisal) (England) Regulations 2012 (which are often referred to as the Appraisal Regulations).  They set out the principles that apply to teachers in all maintained schools and centrally employed (or unattached) teachers employed by a local authority where they are employed for more than one term.

Whilst the Appraisal Regulations do not directly apply to Academies, it is recommended that Academies follow the appraisal regulations even though they are not legally required to, particularly given that most Academies’ contracts of employment incorporate the School Teachers’ pay and conditions document, which link appraisals of individuals subject to the Appraisal Regulations to decisions on pay progression.

Schools are well advised to review their appraisal policy against the Department for Education “Teacher appraisal and capability: A model policy for schools” and ensure that their own appraisal policies reflect the key steps set out in that document.

For support staff, to whom the Appraisal Regulations do not apply, similar principles for conducting appraisals are also recommended.

Should the appraisal process be undertaken in a formal or informal manner?

There are no legal or technical requirements on how an appraisal should be conducted. An appraisal can be kept informal, and approached as a productive conversation between employer/employee. There is no set invite requirement to invite an employee to an appraisal – an email with a diary appointment will suffice.

An appraisal should be a two-way conversation; an opportunity for the School to feed back on the employee’s performance, but also an opportunity for the employee to feed back to the School with any issues they may have that they wish to raise.

How often should appraisals be undertaken?

There is no set time frame or frequency for conducting appraisals. Most Schools use 12 monthly appraisals, which is the appraisal period set out in the Department for Education “Teacher appraisal and capability: A model policy for schools.”

Regardless of how often appraisals are conducted, it is important to bear in mind that regular appraisals are only one part of the performance management process. In particular if appraisals are conducted on a 12 monthly basis you should make sure you have a mechanism to discuss performance issues as they arise, such as regular team or one to one meetings, as appropriate.

What does a School need to do to prepare for an appraisal?

It is still important to plan and prepare for an appraisal. This could include reviewing training records, feedback forms/verbal feedback, and any other criteria used within your school to measure performance. It is also useful to have an understanding of the overall performance of the team the employee being appraised works in, in order to be able to discuss how the employee’s performance impacts on the team’s success as a whole.

Planning before an appraisal will enable the appraiser to go in with feedback on their expectations and standards, be able to suggest areas for improvement, and provide the employee with an effective appraisal meeting.

Appraisers in the school sector should remember that, with the exception of those who are qualified teachers by virtue of holding and maintaining Qualified Teacher Learning and Skills (QTLS) status, all teachers must be assessed against the set of standards contained in the document called “Teachers’ Standards” published in July 2011.  The Teachers’ Standards define the minimum level of practice for trainees and teachers to achieve qualified teacher status.  For teachers who are qualified teachers by virtue of holding QTLS status, it is for the governance board or headteacher to decide which standards are most appropriate.

What do I need to do when I am holding the appraisal meeting?

An appraisal should usually be conducted by the employee’s immediate supervisor or line manager, as directed by the headteacher, whereas the Headteacher, Chief Executive Officer of the trust and other senior trust staff might be appraised by the governance board as per the School’s or Trust’s scheme of delegation.

Notes should be taken during the appraisal as these may need to be referred to at a later point.

An effective appraisal should be conducted in 3 parts:

  1. Feedback

Using the information collated in preparation for the meeting, the appraiser should feed back to the employee on their performance against objectives set before or as soon as practicable after the start of each appraisal period.  For teachers to whom the Appraisal Regulations apply, these objectives ought to be recorded in the appraisal report produced as part of the teacher’s preceding annual assessment.

This can often be an emotive part of the meeting, particularly if it is not all positive. Appraisers should remain calm and measured and provide measurable information/examples to the employee in relation to their performance.

Appraisers should raise both positive and negative feedback in the meeting. It can be easy for appraisers to focus on concerns in an employee’s performance, but if there is something positive (e.g. an achievement, good feedback from a pupil, parent or colleague) this should be raised and acknowledged to the employee.

  1. Set expectations

Inform the employee of what is expected of them in the coming months in terms of individual objectives which, if achieved, will amount to them contributing to the school’s plans for improving the school’s educational provision and performance and improving the education of pupils at the school.

Appraisers should ensure the employee understands any strategic/operational/business changes that may be happening that may impact their work.

Appraisers should also set out clearly the employee’s individual objectives that they would like them to focus on to improve their performance. and set a timescale within which they would reasonably expect the employee to meet those individual objectives.

Appraisers should explain how performance will be reviewed throughout the appraisal period (for example, by classroom observations, carried out in a supportive fashion and not to add to the teacher’s workload, which ought to be documented).  They should also explain, and be committed to following through on, that feedback will be given soon after those observations.

The appraiser should be prepared to discuss any personal development areas that an employee may suggest themselves. If the appraiser agrees with what the employee has suggested, the appraiser should include them on the appraisal form and agree a timescale with the employee within which they reasonably expect the development to be made.

  1. Development

 Once the employee fully understands how they are performing and what expectations have been set, the appraiser should then make suggestions as to how the employee can actually meet those objectives/targets.

The appraiser should be open to suggestions by the employee, and open to accepting that some input may be required by the School to help the employee meet their targets (e.g. providing more training, more individual support).

Appraisals are often a good opportunity to discuss long term career goals with the employee. By discussing with employees what their career aspirations are this can make them feel more engaged and more likely to stay with the business in the longer term.

How do I bring the appraisal to an end?

Offer the employee the opportunity to raise any other issues or discussion points they wish to make. The appraiser should listen to these and deal with them in an appropriate manner. This may require a follow up meeting, depending on what is raised.

Summarise the plan of action/next steps.

It is important to keep a clear record of the appraisal, and for teachers to whom the Appraisal Regulations apply this is often done in the format on appraisal report which ought to be received by the teacher by 31 October or, where the appraise is a Headteacher, by 31 December.

A copy should be provided to the employee and a copy should be kept on the employee’s file.

How does an appraisal help improve employee performance?

A key reason why it is crucially important to monitor performance and tackle it when it falls below what is required is that this is the best way to support the employee to make the necessary improvements before it becomes a more serious issue.

However, if the employee does not/cannot make the necessary improvements then the next stage would be a formal performance management process, see FAQ: Performance management.

For further information see:

APR1: How to Guide: conducting appraisals

APR2: Example employee appraisal form

When is collective consultation required?

Collective consultation obligations apply where an employer is proposing to dismiss 20 or more employees as redundant at any one establishment within a 90-day period.

For Schools that are, for example, part of a wider multi-academy trust, the question as to whether collective consultation obligations apply can often turn on whether the proposal is at “one establishment.”

It is also important to note that the definition of a redundancy dismissal for these purposes is wider than the test of whether the employee would qualify for a statutory redundancy payment. For example, it includes the following circumstances:

  • Voluntary redundancies
  • Employees whose current role the School is proposing to make redundant but expects to offer suitable alternative employment
  • Employees whom the School is proposing to ‘dismiss and re-engage’ in order to achieve changes to their contract of employment.

Schools are well advised to check their Redundancy / Managing Change Policies which have usually been negotiated with recognised trade unions at the outset of a redundancy or restructure process.  This is because it is often the case that, even where such policies and procedures are non-contractual and the proposal is to dismiss fewer than 20 or more employees as redundant, the School has committed to consult (albeit outside of the collective consultation regime) with trade unions about potential redundancies or restructures.

In these circumstances best practise, with a view to maintaining strong union relations, is to follow the steps set out below.  However correspondence to recognised trade unions should make it clear that it is the School’s understanding that the requirement to collectively consult with recognised trade unions does not arise because there are less than 20 staff potentially affected by the proposal.

Who do I have to collectively consult with?

Schools invariably recognise trade unions for the purposes of collective consultation and, therefore, must consult with those trade unions about the proposed redundancy dismissals.

In rare situations, where there is a standard body of representatives in respect of the workforce (such as a Works Council), the School should consult with them in the absence of a recognised trade union – but only if that body has authority to consult on behalf of the workforce about collective redundancies. Not all representative bodies can be said to have authority to consult on behalf of the workforce in these circumstances.

 

Where there is no trade union or appropriate standing body of representatives, the School must arrange to hold elections for employee representatives. Similarly where there is a trade union or standing body which only represents a part of the workforce which is affected, the School will need to arrange employee representative elections to cover the remaining workforce.

What does collective consultation involve?

There are two key aspects to collective consultation: providing information to the appropriate representatives, and consulting about the proposed redundancies.

There is a prescribed list of information which is required to be given to the representatives at the very outset of the process. This requires Schools to give extensive details of the proposals, the roles involved and the process which they intend to follow. This is generally given in a ‘section 188’ letter which should be sent to the head office of all recognised trade unions whose members are affected by the proposal.  Representatives will often request further information during the consultation process, and Schools will generally be expected to provide this to enable meaningful consultation to take place unless there is a very good reason for not providing it.

The consultation aspect generally takes the form of several meetings between the School and the trade union representatives, who must also be given an opportunity to pass information to the individuals they represent. The consultation should cover a broad range of issues, such as whether the redundancies can be avoided or reduced in number, the applicable selection criteria to be used and the make-up of the applicable pools.

Collective consultation does not replace the need for individual consultation. Once the consultation process with the representatives has come to an end the School then needs to conduct individual consultation meetings with those individuals at risk prior to issuing notice of redundancy.

So I need to collectively consult for at least 30 days?

No – this is a common misconception.

The law says that no redundancy dismissals can take effect within 30 days of the beginning of collective consultation (rising to 45 days where there are 100+ proposed redundancies). It is possible to conclude collective consultation, and individual consultation, provided that no notices of dismissal expire during this time.

However, Schools should also guard against being seen to rush through the process and avoid an argument that they have not properly consulted and/or that some or all of the redundancy dismissals are unfair.

What are the risks of getting collective consultation wrong?

The main risk is that Schools will be ordered to pay a ‘protective award’ if they are found not to have complied with their collective consultation obligations by an Employment Tribunal. Tribunals can make a ‘protective award’ of 90 days’ pay in respect of each employee, and this is not subject to the cap on a ‘week’s pay’ as other areas of employment law.

Furthermore, a failure to properly collectively consult may also give rise to a claim that one or more of the redundancy dismissals were not fair, and redundant employees may bring unfair dismissal claims on that basis.

Schools are also required to file a HR1 form at the outset of the process with the Government, providing certain details of the proposed redundancies. Failure to do so can actually constitute a criminal offence!

What are the most common mistakes Schools make in a collective redundancy process?

Redundancies being a foregone conclusion before consultation has started

The basic principle of consultation is that it is approached with an open-mind and without any final decisions made regarding the redundancies. If trade unions can show that the School had already decided to proceed with the redundancies before consultation, this will almost certainly render any subsequent consultation process a sham. The duty to consult in a collective consultation situation generally arises much earlier than in a “standard” redundancy- the obligation arises at the point of the “proposal” to dismiss.

Getting employee elections wrong

Whilst Schools will almost always inform and consult with recognised trade unions (and therefore not need to go through the process of electing appropriate representatives), most UK employers outside of the education sector, are not familiar with arranging representative elections, and many are therefore not sure where to start. Employers have some discretion over employee representative elections (such as how many representatives are required), but there are a number of strict rules and overriding principles which they must follow.

Not providing the trade unions with the required information

Some of the information required to be provided by section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 is basic, such as the total number of the proposed redundancies and the specific roles which are at risk.

However, not all of the information is obvious by any stretch – for example, Schools must provide details of their use of agency workers anywhere in the business. Although this may seem unimportant, a failure to provide this information is technically a breach of collective consultation obligations.

Not consulting with individuals about their redundancies

Collective consultation creates an extra layer of protection for employees; it does not remove their existing protection against unfair dismissal. Schools must still therefore consult with individual employees who remain at risk of redundancy following collective consultation, or risk unfair dismissal claims on the basis that they have not followed a fair procedure.

What documents are available to help me with collective redundancies?

We have put together a toolkit of documents in order to assist you with this process, which are available for purchase and include:

  • How to Guide: Collective redundancies
  • Guidance note on collective consultation
  • Collective consultation step plan
  • HR1 form
  • Letter/email to workforce announcing proposed redundancies
  • Guide on conducting an election
  • Invitation to nominate employee representative(s)
  • Notice of ballot for employee representatives
  • Confirmation of elected representatives
  • Guide for Rights and Responsibilities for Employee Representatives
  • S188 letter
  • Request for volunteers for redundancy
  • Selection assessment form and guidance
  • Letter/email confirming provisional selection – in a pool
  • Letter/email confirming provisional selection – no pool
  • Follow up to individual consultation
  • Letter/email offering alternative employment
  • Letter/email accepting voluntary redundancy
  • Letter/email confirming dismissal
  • Letter/email inviting to an appeal meeting
  • Letter/email confirming appeal outcome

For further information on the toolkit please contact us

What family leave do we need to provide our employees?

Family leave and rights have gradually been extended over the years, including most recently the addition of parental bereavement rights in 2020.  Now employees have a number of rights which relate to family leave.  Broadly speaking, these are: adoption leave and pay; pregnancy and maternity leave, pay and rights; paternity leave and pay; parental leave; shared parental leave; time off for dependents and; parental bereavement leave.  In addition, all employees are able to request flexible working after 26 weeks’ continuous employment.

HR Protect customers can access detailed guidance, template letters and policies.  For a summary of the family friendly rights please see: How to guide: Family friendly rights overview.

 

What are the main similarities and differences between adoption leave and maternity leave?

Both are entitled to up to 52 weeks of leave and 39 weeks of statutory pay and to take time off for adoption or ante-natal appointments.  See AD7: Time Off for Adoption Appointments Policy and MAT11: Time Off for Antenatal Appointments Policy.  Similarly, once the leave has ended, both are entitled to return to the same job or a suitable alternative and protected from dismissal or detriment due to having taking adoption/maternity leave.  Employers are entitled to minimum notice from their employees if they intend to take adoption or maternity leave.

However, employers have additional health and safety obligations in relation to pregnant employees and not all adoptions are protected under the law.  For example, some private adoptions are not covered by the legislation.  See AD1: How to guide – Adoption for details and MAT1: How to guide – Pregnancy and maternity for details.

 

What notice are we entitled to receive from our employees who want to take maternity leave?

To qualify for statutory maternity pay, an employee must notify their employer of their pregnancy by no later than 15 weeks before they are due to give birth.  The employee should also provide a certificate from a doctor or midwife.  This is usually done using a MAT B1 form.  Full details can be found in MAT10 – Maternity Policy.

Is it ok to ask an employee on maternity leave to return to work to attend training?

Yes, employees on maternity leave are permitted to return to work for up to 10 days without ending their maternity leave.  These days are known as ‘keeping in touch’ (KIT) days.  Both the school and the employee must agree for a KIT day to be taken. For a letter inviting an employee to a KIT day, please see: MAT7: Request for employee to attend a KIT day

What is the difference between paternity and parental leave?

Paternity leave entitles an employee to a maximum of 2 weeks’ leave within the first 56 days following the birth/placement for adoption of their child and is available to the child’s father or spouse of the mother so that they can care for their child.  Statutory paternity pay is available for a maximum of 2 weeks.

Further details of paternity leave can be found at PAT1: How to guidance and PAT3: Paternity Policy.

In contrast, parental leave allows a parent to take up to 18 weeks’ unpaid leave to care for their child.

Minimum service, notice and evidential requirements must be met for both types of leave.

An employee needs to take emergency time off to look after their child. Is this covered by any family rights?

Yes.  All employees, regardless of their length of service, have the right to take a reasonable amount of unpaid time off where it is necessary to care for a dependent.  A dependent includes the spouse, civil partner, child and parents of the employee and others who reasonably rely on the employee for care or assistance.    However, this right only applies in five specified circumstances

To avail themselves of this right, an employee must inform you as soon as reasonably practicable of the need to use this right and how long they expect to be absent.

The legislation is intended to cover a situation where there is an immediate crisis.  Therefore this right would not cover, for example, time off to take a child to a planned medical appointment but this could potentially be covered by parental leave.  It would also not cover a situation where the employee needed to take time off to stay home because a pipe had burst and their house had been flooded.  A compliant policy is available at TD2: Time Off for Dependants Policy.

How do we respond to a flexible working request and what are the potential pitfalls?

An eligible employee i.e. an employee who has 26 weeks’ continuous service and who has not made a flexible working request in the last 12 months, can apply to change their hours, times or place of work. These 3 wide categories would therefore cover a request to just work term-time hours as it would be a change to the employee’s hours and similarly a request to work one day a week from home would also be covered as it would be a change to the employee’s place of work.

The flexible working request must also adhere to certain formalities, including that it must be dated and in writing.

Once the request has been received an employer must provide their decision within 3 months.  The employer may be able to accommodate the flexible working request fairly easily in which case they can simply advise the employee that their request has been agreed.  However, it is unusual for an employer to be able to agree to a request without first meeting the employee and discussing the proposed changes and their impact Our flowchart F2: Flexible working flowchart sets out what should happen and when.

If a request cannot be immediately agreed then the next step is to acknowledge the request and invite the employee to a meeting – see F4: Acknowledgment of flexible working request and invitation to meeting for a letter to send to the employee and F13: Guidance: conducting meeting to consider flexible request for specific advice on how to conduct the meeting.

If you are not sure whether the request can be accommodated, the request can be accepted but conditional upon the employee working a successful trial period.

A request can be rejected but only for one of the eight permitted reasons.

Where a request is rejected, the employee should be permitted to right to appeal.

If a flexible working request is agreed then the proposed changes to the employee’s contract are permanent, subject to any trial periods.  To avoid any confusion (and to comply with legislation which requires that certain contractual changes are confirmed to the employee in writing) it is sensible to confirm any changes in writing.  For a letter to send to the employee confirming that the flexible working request in writing see F5: Confirmation of acceptance of flexible working request.

The potential difficulties for employers are:

  • Not complying with the time-limits;
  • Not meeting the client prior to rejecting the request;
  • Unreasonably rejecting the request/not having evidence to support the decision;
  • Not using one of the eight permitted reasons to decline the request;
  • Not allowing an appeal

Failure to properly respond to a flexible working request can result in the employee resigning and bringing a claim of constructive dismissal and/or discrimination.

Is an employer liable for the discriminatory conduct by its employees?

Yes, employers can be liable for anything discriminatory that is done by an employee, agent, consultant or contractor in the course of their employment (no matter how junior the employee may be and irrespective of whether the employee’s actions were done with the employer’s knowledge or approval).

An employee alleging discrimination can bring a claim against the alleged discriminator personally and the employer.

What are the 'protected characteristics' that protection from discrimination applies to?

There are 9 ‘protected characteristics’ under the Equality Act 2010 which are: sex, disability, race (including nationality), age, pregnancy and maternity, marriage and civil partnership, religion or belief, gender re-assignment and sexual orientation.

What is discrimination? What are the different types of discrimination?

There are four main types of discrimination claim that can be brought against an employer. They are:

  1. Direct discrimination
  2. Indirect discrimination
  3. Harassment
  4. Victimisation

In relation to disability discrimination, there are additional forms of discrimination: discrimination arising from a disability and failure to make reasonable adjustments. These forms of discrimination are covered in further detail in:

DIS3: Disability Discrimination

For further guidance on the most common specific strands of discrimination please see:

DIS2: Guidance: Sex Discrimination

DIS3: Guidance: Disability Discrimination

DIS4: Guidance: Race Discrimination

DIS5: Guidance: Age Discrimination

What is direct discrimination?

Direct discrimination occurs when, because of a protected characteristic, an employer treats an employee or job applicant less favourably than they treat or would treat others.

For example, a woman not being considered for promotion because she is pregnant.

An employee or job applicant claiming direct discrimination has to establish/satisfy the burden of proof as follows in order for their claim to be successful:

  1. that an actual or hypothetical colleague in the same circumstances as them, but without their protected characteristic, did not or would not have received the same treatment; and
  2. that the less favourable treatment was consciously or subconsciously because of their protected characteristic.

Direct discrimination can be by association or perception; for example in relation to a disabled family member of an employee (association) or if an individual is perceived as homosexual (perception), regardless of whether this perception is correct or not.

What is indirect discrimination?

Indirect discrimination is concerned with acts, decisions or policies which are not intended to treat anyone less favourably, but which, in practice, have the effect of disadvantaging a group of people with a particular protected characteristic.

For example, a dress code which applies to all employees but prevents employees of a particular religion wearing certain items of clothing which their religion requires them to wear.

You may be able to defend an indirect discrimination claim if you can demonstrate that your actions are or were ‘a proportionate means of achieving a legitimate aim’. To do this you must be able to evidence that you had a legitimate aim corresponding to a real business need, and that the policy or practice was a proportionate means of achieving that aim.

Indirect discrimination risks need to be considered when rejecting flexible working requests. For more information see:

F1 – How to guide – Flexible working

What is harassment under discrimination law?

Harassment is defined as unwanted conduct related to a protected characteristic which has the purpose or effect of violating an employee or job applicant’s dignity, or, creates an intimidating, hostile, degrading, humiliating or offensive environment for the employee.

It is common for harassment claims to result from workplace banter or a joke which an individual made not considering or intending it to be offensive, and perhaps at first glance is not related to a particular protected characteristic.

For example: an employee thinks it is inoffensive to say ‘Ooo la la’ whenever a French colleague finishes speaking but his colleague becomes sick of this joke.

 Harassment can take the form of a one-off incident or a series of incidents. As with direct discrimination an employee does not need to have the protected characteristic to make a harassment claim.

What is sexual harassment under discrimination law?

In addition to harassment relating to one of the protected characteristics, harassment of a sexual nature can also give rise to a claim against an employer. Sexual harassment comes in two forms:

  • An employee engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect of violating their colleagues dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for their colleague.
  • An employee engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, and the conduct has the purpose or effect of violating their colleague’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for their colleague and because of their colleague’s rejection of or submission to the conduct, the employee treats them less favourably than they would have had they not rejected or submitted to the conduct.
What is victimisation under discrimination law?

The victimisation provisions in the Equality Act 20210 are designed to enable employees to exercise their rights under the Act without fear of repercussions or punishments from their employer. The provisions protect employees or job applicants who do (or might do) “protected acts” such as bringing discrimination claims, complaining about harassment (including by lodging a grievance), or getting involved in some way with another claimant’s discrimination complaint (such as giving evidence). If a person subjects another person to a detriment because, either, they have done a protected act or it is thought that they have done or may do a protected act then this will create grounds for a victimisation claim.

How long does an employee have to commence a discrimination claim?

The general rule is that an employee who believes that they have been discriminated against has 3 months from the date of the alleged discriminatory act to submit a claim to the employment tribunal. If the act is part of a series of related acts, the employee has 3 months from the date of the last act to submit a claim.

The tribunal can extend the 3 month period for bringing a discrimination claim if it feels that it is just and equitable to do so.

What is the potential cost of a discrimination claim?

Compensation for discrimination claims is uncapped and therefore can be potentially costly. Additionally, the employee can bring the claim while still in employment. Costs are broadly split into the following categories:

Compensation for loss of earnings – this is uncapped and can potentially cover a number of years depending on when the employee obtains alternative employment.

Injury to feelings – is calculated on the basis of the level of hurt caused to the individual and is based on what is known as Vento bands. The lower, middle and upper bands of Vento set out the ranges of compensation available, depending on the nature of the discrimination suffered. These bands are reviewed and increased periodically and are subject to the current maximum of £44,000, except in the most exceptional circumstances.

Reputational damage is also a risk with these types of claims and something that schools should be aware of.

How can a school minimise the risk of a discrimination claim?

The steps we recommend to minimise the risk of a claim arising are:

  • Putting in place appropriate policies and procedures and drawing them to employees’ attention so that they understand what behaviour will and will not be acceptable;
  • Providing training to all employees on the risks of a discrimination claim and what constitutes good and bad practice (please do not hesitate to contact us if you would like details of the training sessions that we can provide) and making sure that this is refreshed when necessary;
  • Taking appropriate action, i.e. conducting a thorough investigation and putting corrective measures in place, in the event of concerns relating to a protected characteristic being raised; and
  • If you are unsure whether any of your policies or practices may be discriminatory please contact us and we can advise on appropriate next steps.

For further information on discrimination in an employment setting see:

DIS1 How to Guide: Avoiding discrimination

What is a grievance?

It is a complaint, concern or problem raised by a member of staff. It can cover anything from a complaint about a colleague and the way they have been treated, to a complaint about unequal pay or an unfair process.

A grievance can also cover a complaint of bullying and harassment and discrimination although many organisations have a separate policy for handling these concerns.

Does a grievance have to be made in writing?

No. A grievance can be a verbal complaint made to someone’s manager or headteacher. Ideally, however, you would ask your member of staff if they want to put their grievance in writing so that there is a record. If a grievance is put in writing, it does not prevent an informal approach being taken if appropriate.

Does a grievance always have to be dealt with formally?

No. In many cases it is appropriate to deal with a grievance informally, particularly where it has been a one off or minor incident.  Speaking to the parties involved on an informal basis can often diffuse the situation and enables the parties to see the other’s point of view.

If the informal approach does not resolve the issue then the next step is to use the formal process. You should also use the formal process where the incident is more serious, or there have been a number of incidents, or the aggrieved person insists.

If you have a grievance policy it will also provide guidance on the approach to follow.

For further guidance on the process employers need to follow see:

Flowchart: Grievance

Do I need to have a grievance policy in place?

It is not a mandatory requirement for schools to have a grievance policy in place, but it can be extremely helpful when dealing with such matters as it sets out what is expected of the employee and school in these situations. It is crucial that all grievance policies incorporate the provisions of the ACAS Code of Practice on Disciplinary and Grievance Procedures as a minimum:

https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html

For a compliant policy please see:

G11: Grievance Policy and Procedure

Who should investigate a grievance?

This should be someone who is independent to the issues. Ideally it should be the direct line manager of the complainant or the headteacher. If the grievance is about that line manager then it should be their line manager or someone more senior.

If you have are a small school where there is no one truly independent then you could consider asking governor or an external person from specialist investigation company or with an HR background to undertake the investigation.

Do you always need to allow an employee to be accompanied to a grievance meeting?

All employees are entitled to be accompanied to a grievance hearing, by either a colleague or Trade Union representative. There is no right to be accompanied to a grievance investigation meeting. Where the employer fails to allow the employee to be accompanied to a grievance hearing and the individual subsequently brings a claim in the Employment Tribunal, this failure in itself attracts a separate award of compensation. See:

G3: Acknowledgement of grievance and invitation to grievance meeting

G4: Grievance meeting guidance

What happens if someone raises a grievance during a disciplinary process and says that they have been treated unfairly? Do you have to investigate the grievance?

Yes.

It is not unusual for someone who is subject to a disciplinary or performance management process, for example, to raise a grievance to say that they have been treated unfairly. You have three options:

  • Pause the disciplinary process whilst you investigate the grievance;
  • Incorporate the grievance investigation into the disciplinary investigation; or
  • Have the grievance investigation and disciplinary investigation running side by side

The approach you take will depend on a number of factors such as; is the aggrieved saying that the disciplinary process itself is unfair which may mean that their grievance needs to be investigated independently? You would have to be mindful of any delay to the disciplinary process if you choose to pause it whilst the grievance is investigated.

Or are they saying that, for example, their manager has treated them unfairly which is why they have behaved as they have, in which case it may be suitable to have a combined investigation and grievance process.

Or is it a more general grievance about how they have been treated which would have no effect on the outcome of any disciplinary process? In which case the processes could be kept separate.

If the grievance is anonymous do we still need to investigate?

Yes although the investigation might be limited if you are unable to clarify the issues with the person who has raised the grievance.

Do I have to investigate a grievance if someone is no longer my employee?

Potentially yes.

If the individual raised the grievance whilst they were still employed then you should investigate their concerns particularly as it may be the basis for an Employment Tribunal claim.

If they raised the grievance after they have left your employment you will need to consider the risk that they may bring a claim arising out of the issues in the grievance and if that claim can be brought in time.

If the grievance raises serious issues about bullying and harassment by management or a group of employees, for example, it could be necessary to investigate those concerns particularly if there is a potential for impact on the individuals who remain.  If the grievance concerns allegations relevant to safeguarding then you should always investigate.

What are the most common mistakes employers make in a grievance process?

Not investigating the allegations properly

Often employers are found by Employment Tribunals to have not taken a balanced approach to the investigation and only investigated the facts in support of the allegations, not those which support the employee.

Not identifying the allegations to be investigated properly

Allegations in a grievance can be complex and can cover a long period of time. It is crucial that the investigator is clear about what allegations need to be investigated. Ideally the scope of the investigation should be agreed with the aggrieved at the outset.

Lack of communication

Raising a grievance is often a very stressful time for the individual making the complaint and the individuals being investigated. If the investigation is handled poorly, it can badly damage the employment relationship. Investigations do not always run to plan and there can be delays. It is very important to keep the line of communication open with all those involved and provide updates on the progress of the investigation particularly if there is a delay.

Inconsistent treatment of employees

Clearly, each case turns on its own facts, but employers need to be very wary of being capable of justifying any differences in treatment. If the decision is not capable of justification then it may give rise to a constructive unfair dismissal claim, and potentially some form of discrimination claim if the individual can show that the difference in treatment can be explained by their protected characteristic.

Do you need to provide a copy of the notes from the investigation to the person who raised the grievance?

There is no legal requirement to do so and organisations often make the decision not to because of the sensitive nature of the allegations and information provided.

Careful consideration will need to be given to any request for a copy of the notes. Remember that someone can make a subject access request and obtain the notes in that way. Schools can be the subject to freedom of information requests which can yield a wider range of documents.

For further guidance on the appropriate grievance process please see:

Flowchart: grievances and D1: How to Guide: Grievances

Who can you employ as an apprentice?

Anyone over the age of 16 who is not in full time education, whether they are a current employee or new to the school, can become an apprentice.

Schools who employ those under the age of 18 must assess the risk to such individuals from a health and safety point of view before they start employment, taking into account their inexperience, lack of awareness of risks and immaturity.

What type of contract should an apprentice be given?

The first and perhaps most important thing to understand when considering employing an apprentice is to make sure that the individual is engaged on the correct type of contract. Using the wrong contract is the main pitfall for employers to be wary of; it can make dismissing an apprentice, even for gross misconduct, high risk.

The education sector now has a series of approved apprenticeship standards that the apprentice will work towards, depending on their role. To see an example of the standards and required learning outcomes you should visit the Institute for Apprenticeship’s website:

https://www.instituteforapprenticeships.org/apprenticeship-standards

Where a standard does not exist for a particular role then there may be an apprenticeship framework in place. The government are in the process of replacing these therefore standards should be used where possible.

Apprenticeship agreements in England have to be in a prescribed form and satisfy certain conditions. If you engage an apprentice but do not do so in the prescribed form or if an approved standard does not exist for your sector then the apprentice will be engaged under a ‘contract of apprenticeship’, meaning that they are a traditional apprentice. Such individuals can only be safely dismissed where it has become impossible to train them.

For a compliant contract using an approved apprenticeship standard see:

A2: Contract of employment: apprenticeship agreement (English approved standard)

Or where a framework is still in place and no approved English apprenticeship standard has been produced see:

A3: Contract of employment: apprenticeship agreement (framework)

What are schools' responsibilities in respect of employing apprentices?

Your responsibility to ensure the delivery of the training element of the apprenticeship is the main difference between your’ responsibilities towards apprentices and other employees.

Apprentices must spend at least 20% of their time on off-the-job training. When you take on an apprentice you should select a training provider from the register of apprenticeship training providers and agree a price for the cost of training and assessment. On completion of the apprenticeship the apprentice must pass an assessment to demonstrate that they can perform the relevant role to the standard set by the relevant apprenticeship standard or framework.

You can select and compare training providers and view apprenticeship standards/frameworks on the apprenticeship service on gov.uk:

https://www.gov.uk/guidance/manage-apprenticeship-funds

Aside from ensuring the delivery of appropriate training, schools also need to have:

  • An apprenticeship agreement in place with the apprentice for the duration of the apprenticeship (which must be at least one year). As set out above it is crucially important to use the correct documentation
  • A commitment statement signed by the apprentice, the employer and the provider
  • A written agreement with the training provider
  • The apprentice on the correct wage for the time they are in work, in off-the-job training and doing further study.
What are the potential financial benefits to employing an apprentice?
  • You are not required to pay National Insurance Contributions for apprentices under the age of 25 on earnings below the higher tax rate of £827 a week (£43,000 a year).
  • Apprentices that are employed under an apprenticeship agreement and are in the first year of their apprenticeship or under 19 years old can be paid national minimum wage at the apprenticeship rate (see current rate https://www.gov.uk/national-minimum-wage-rates).
  • £1,000 payment to both the employer and the training provider when they train a 16 to 18 year old.
  • £1,000 payment to both the school and the training provider when they train a 19 to 24 year old who has previously been in care or who has a local authority education, health and care plan.
  • Trusts or governing bodies with a pay bill of less than £3 million a year will not need to pay the apprenticeship levy but at least 90% of the apprenticeship training and assessment costs will be paid for by the government.
  • Trusts or governing bodies with a pay bill of more than £3 million a year will be required to pay the apprenticeship levy regardless of whether they employ apprentices so may as well access the funds that are available/they contribute to in order to cover apprenticeship training and assessment costs.
When does a school have to pay the apprenticeship levy?

A trust or governing body with a pay bill of over £3 million a year must pay the apprenticeship levy regardless of whether they employ an apprentice.

The levy is currently 0.5 per cent of the total pay bill. It is deducted through the PAYE each month and paid into a fund which is reinvested in apprenticeship training. For every £1 contributed the government adds 10p. If you are a levy paying school you can manage and access levy funds and your apprenticeship program by using the online apprenticeship service:

https://www.gov.uk/guidance/manage-apprenticeship-funds

Can an apprentice be treated the same as other employees in respect of internal procedures?

You can take the same approach to performance management, misconduct, dismissal, etc. with an apprentice as you would any other employee provided they are engaged on the correct contractual documentation. Similarly, apprentices are entitled to holiday pay, sick pay and maternity/paternity/adoption/shared parental leave subject to the usual qualifications.

However, if an apprentice is working under a contract of apprenticeship then dismissing them before their fixed term contract ends is high risk. See can I dismiss an apprentice during their apprenticeship below.

Can I dismiss an apprentice?

If the apprentice is employed under an apprenticeship agreement you can terminate their employment by following the same procedures as you would with any other employee.

If the school will not be employing the apprentice after the completion of their apprenticeship this is likely to constitute a dismissal (regardless of the fact that their fixed term has expired). You should therefore treat the expiry of their fixed term like any other dismissal, i.e. be able to show that one of the five potentially fair reason for dismissal apply, most likely some other substantial reason, and be able to demonstrate that you followed a fair procedure in relation to the dismissal. Failure to do so may give grounds for an unfair dismissal claim. Although apprentices who have worked for the school for less than 2 years would only be able to bring a claim in limited circumstances.

If the apprentice is employed under a contract of apprenticeship then dismissing them before the end of their apprenticeship is high risk unless it can be shown that they are essentially unteachable. An apprentice whose apprenticeship ends early could be entitled to claim sums in respect of loss of earnings, loss of training and loss of future career prospects. Please speak to your legal advisor for further advice in these circumstances.

For further guidance on employing apprentices see:

A1: How to Guide: Apprenticeships

What do I need to think about when employing children?

There are specific rules in place in relation to employing children. These largely relate to special provisions on limiting working time and providing adequate rest. For further information, see:

M14: Guidance Note: employing children and young workers

Associated resource

M14 – Guidance Note – employing children and young workers

When can I use a settlement agreement?

Settlement agreements can be a very effective way of managing exits from the business, whilst also managing the risks involved. By offering a settlement agreement to an employee you are effectively buying off the risk of a claim. A settlement agreement can also a useful way to bind exiting employees to additional provisions on confidentiality and post termination restrictions, where necessary.

Employers need to be very careful when discussing potential settlement with employees, as a poorly managed conversation can in itself trigger claims. For further information on how to conduct these conversations, please see:

M9: Guidance on holding protected conversations

Associated resource

M9 – Guidance on holding protected conversations

What does a settlement agreement need to contain?

In order for settlement agreements to be binding it is essential that the document is properly drafted and sets out the agreement between the parties accurately. A settlement agreement that does not comply with the legislative requirements is very unlikely to be enforceable. Please speak to your advisor about drafting an agreement for you.

In order to put together the settlement agreement your advisor will require certain information from you. Please complete Settlement Agreement questionnaire which sets out all of the relevant information required.

Associated resource

M7 – Settlement agreement questionnaire

How do I accept a resignation?

It is not up to the employer to “accept” an employee’s resignation, or otherwise- it is up to the individual to resign and inform the employer that this is the case. However, a resignation should be acknowledged by the employer and a letter confirming arrangements should be sent to the employee. For a letter acknowledging a resignation please see:

M2: Letter acknowledging resignation

Associated resource

M2 – Letter acknowledging resignation

How to get employees to opt out of the 48 hour working week limit?

The Working Time Regulations imposes strict limits on working time in relation to minimum rest periods, rest breaks, holidays and limiting working time. There is restricted ability for employers to validly exceed these limits, however employers are able to ask their workers to opt out of the 48 hour maximum working week by getting them to sign an opt out agreement.

There are significant penalties for employers who do not observe the 48 hour maximum working week and who do not have opt out agreements in place. Therefore, where there is a possibility that a worker may exceed a 48 hour maximum working week then it is crucial that an opt out agreement is put in place. See, Working Time Regulations: 48 hour opt out agreement in the document section. However, employers should also be mindful of not subjecting employees to a detriment for agreeing to the opt out, or withdrawing their consent to this.

Associated resource

M1 – Working Time Regulations – 48 hour opt out agreement

What is lay- off?

Lay off is a temporary measure where an employee is required not to do any work by their employer in any given week and does not receive any salary for that period. This is sometimes used interchangeably to refer to redundancies; however, this is not correct and lay-off is different to redundancy.

When can I use lay off?

Lay-off may be very useful to achieve short or medium-term cost savings in response to a temporary reduction in demand for products or services. Whether the employer has the right to implement lay-offs and how swiftly they can expect to be able to do so will depend on whether the relevant contracts of employment have specific provisions which deal with lay-off.

What is short time working?

Short time working is where an employer temporarily reduces an employee’s working hours, with a corresponding reduction in their pay to less than 50% of their usual salary. This could be through reducing the number of working days, reducing the length of working days or a combination of both.

When can I use short time working?

Short time working provides the employer with the ability to reduce staffing costs whilst providing flexibility in deciding the form of working pattern. As with lay-off, whether the employer has the right to unilaterally impose short-time working and how swiftly they can expect to practically implement this will depend on whether the relevant contracts of employment contain a short time working clause.

How do I implement lay off and short time working?

Where there is a contractual right to lay off or impose short time working: There is no strict process which has to be followed. We would advise transparent communication and confirmation in writing.

Where there is no contractual right: Imposing these options without a contractual right to do so will be a fundamental breach of the employee’s contract of employment. In these circumstances the employee’s options are: accept the situation and keep working; claim for lost pay; resign and claim constructive dismissal. The best approach for employers in these circumstances is to instead seek to agree lay-off or short-time working arrangements with employees.

How do I select employees for lay-off or short time working?

There is no prescribed method for selecting which employees are to be laid-off or placed on short-time working, provided that the employee cannot argue that the method of selection is discriminatory in some way. We would advise selection based on objective business reasons.

Entitlement to pay during lay-off or short time working: Employees must be paid for the time they work. Additionally, while on lay off or short time working, an employee is entitled to receive statutory guarantee pay for the first 5 workless days in any 3-month period. The maximum statutory guarantee pay in any 3-month period is £150 (i.e. £30 for each workless day up to a maximum of 5).

When are employees on lay off or on short time working entitled to redundancy pay?

Entitlement to statutory redundancy pay: Once employees have been on lay-off or on short-time working for 4 consecutive weeks or for a combined total of 6 weeks during any 13-week period, they may seek to claim a statutory redundancy payment (provided that they have two years’ service). There is a prescriptive process for this – please seek advice.

What family leave do we need to provide our employees?

Family leave and rights have gradually been extended over the years, including most recently the addition of parental bereavement rights in 2020.  Now employees have a number of rights which relate to family leave.  Broadly speaking, these are: adoption leave and pay; pregnancy and maternity leave, pay and rights; paternity leave and pay; parental leave; shared parental leave; time off for dependents and; parental bereavement leave.  In addition, all employees are able to request flexible working after 26 weeks’ continuous employment.

HR Protect customers can access detailed guidance, template letters and policies.  For a summary of the family friendly rights please see: How to guide: Family friendly rights overview.

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How to Guide – Family friendly rights

What are the main similarities and differences between adoption leave and maternity leave?

Both are entitled to up to 52 weeks of leave and 39 weeks of statutory pay and to take time off for adoption or ante-natal appointments.  See AD7: Time Off for Adoption Appointments Policy and MAT11: Time Off for Antenatal Appointments Policy.  Similarly, once the leave has ended, both are entitled to return to the same job or a suitable alternative and protected from dismissal or detriment due to having taking adoption/maternity leave.  Employers are entitled to minimum notice from their employees if they intend to take adoption or maternity leave.

However, employers have additional health and safety obligations in relation to pregnant employees and not all adoptions are protected under the law.  For example, some private adoptions are not covered by the legislation.  See AD1: How to guide – Adoption for details and MAT1: How to guide – Pregnancy and maternity for details.

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AD7 – Time Off for Adoption Appointments Policy

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MAT11 – Time Off for Antenatal Appointments Policy

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AD1 – How to guide – Adoption

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MAT1 – How to guide – Pregnancy and maternity

What notice are we entitled to receive from our employees who want to take maternity leave?

To qualify for statutory maternity pay, an employee must notify their employer of their pregnancy by no later than 15 weeks before they are due to give birth.  The employee should also provide a certificate from a doctor or midwife.  This is usually done using a MAT B1 form.  Full details can be found in MAT10 – Maternity Policy.

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MAT10 – Maternity Policy

Is it ok to ask an employee on maternity leave to return to work to attend team away day?

Yes, employees on maternity leave are permitted to return to work for up to 10 days without ending their maternity leave.  These days are known as ‘keeping in touch’ (KIT) days.  For a letter inviting an employee to a KIT day, please see: MAT7: Request for employee to attend a KIT day

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MAT7 – Request to employee to attend a KIT day

What is the difference between paternity and parental leave?

Paternity leave entitles an employee to a maximum of 2 weeks’ leave within the first 56 days following the birth/placement for adoption of their child and is available to the child’s father or spouse of the mother so that they can care for their child.  Statutory paternity pay is available for a maximum of 2 weeks.

Further details of paternity leave can be found at PAT1: How to guidance and PAT3: Paternity Policy.

In contrast, parental leave allows a parent to take up to 18 weeks’ unpaid leave to care for their child.

Minimum service, notice and evidential requirements must be met for both types of leave

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PAT1 – How to guide – Paternity

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PAT3 – Paternity Policy

Do I need to document the recruitment process?

Employers who properly document the recruitment process to establish a paper trail will be better placed to justify decisions taken, to show that a selection decision was based on objective evidence of an applicant’s ability to do the job (rather than on assumptions or prejudices) and to show that they took reasonably practicable steps to prevent unlawful discrimination or harassment.

Can you discriminate against someone during the recruitment process?

Protection from discrimination applies to job applicants in the same way as it does actual employees so, from a risk point of view it is essential that employers avoid any form of discrimination during the recruitment and appointment process, even if this is done advertently.

 For further information on discrimination see:

DIS1 How to Guide: Avoiding Discrimination

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DIS1 – How to guide – Avoiding Discrimination

What should be included in a recruitment job description?

Before advertising a vacancy, a written job description for the role should be compiled. The job description should cover:

  • the main purpose and objectives of the job;
  • the place of the job holder in the organisational structure;
  • the main tasks and responsibilities of the job holder; and
  • any associated tasks.

When compiling a job description, ensure that an appropriate job title is used that does not show any premeditated bias (e.g. “paper boy” or “waitress”) and that the job is accurately described.

You may also wish to prepare a person specification detailing the experience, know-how and qualifications, skills, abilities and behavioural attributes necessary to perform the duties in the job description. Criteria in the job description or specification must not be discriminatory and employers should be able to justify any necessary or desirable criteria against the job in question.

Do I need to advertise job vacancies externally?

It is generally considered best equal opportunities practice to advertise all vacancies externally as this will ensure that as wide a pool of candidates as possible is reached. This will not always be appropriate however, for example, in a redundancy situation, where an employer is obliged to consider what alternative employment is available within the organisation for employees who are at risk of redundancy.

For further information on redundancy see:

R1 – How to Guide – Redundancy.

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R1 – How to Guide – Redundancy

An employee needs to take emergency time off to look after their child. Is this covered by any family rights?

Yes.  All employees, regardless of their length of service, have the right to take a reasonable amount of unpaid time off where it is necessary to care for a dependent.  A dependent includes the spouse, civil partner, child and parents of the employee and others who reasonably rely on the employee for care or assistance.    However, this right only applies in five specified circumstances

To avail themselves of this right, an employee must inform their employer as soon as reasonably practicable and how long they expect to be absent.

The legislation is intended to cover a situation where there is an immediate crisis.  Therefore this right would not cover, for example, time off to take a child to a planned medical appointment but this could potentially be covered by parental leave.  It would also not cover a situation where the employee needed to take time off to stay home because a pipe had burst and their house had been flooded.  A compliant policy is available at TD2: Time Off for Dependants Policy.

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TD2 – Time off for dependants policy

How do we respond to a flexible working request and what are the potential pitfalls?

An eligible employee i.e. an employee who has 26 weeks’ continuous service and who has not made a flexible working request in the last 12 months, can apply to change their hours, times or place of work. These 3 wide categories would therefore cover a request to just work term-time hours as it would be a change to the employee’s hours and similarly a request to work one day a week from home would also be covered as it would be a change to the employee’s place of work.

The flexible working request must also adhere to certain formalities, including that it must be dated and in writing.

Once the request has been received an employer must provide their decision within 3 months.  The employer may be able to accommodate the flexible working request fairly easily in which case they can simply advise the employee that their request has been agreed.  However, it is unusual for an employer to be able to agree to a request without first meeting the employee and discussing the proposed changes and their impact Our flowchart F2: Flexible working flowchart sets out what should happen and when.

If a request cannot be immediately agreed then the next step is to acknowledge the request and invite the employee to a meeting – see F4: Acknowledgment of flexible working request and invitation to meeting for a letter to send to the employee and F13: Guidance: conducting meeting to consider flexible request for specific advice on how to conduct the meeting.

If an employer is not sure whether the request can be accommodated, they can accept the request but make it conditional upon the employee working a successful trial period.

A request can be rejected but the employer must rely on one of the eight permitted reasons.

Where a request is rejected, the employee should be permitted to right to appeal.

If a flexible working request is agreed then the proposed changes to the employee’s contract are permanent.  To avoid any confusion (and to comply with legislation which requires that certain contractual changes are confirmed to the employee in writing) it is sensible to confirm any changes in writing.  For a letter to send to the employee confirming that the flexible working request in writing see F5: Confirmation of acceptance of flexible working request.

The potential difficulties for employers are:

  • Not complying with the time-limits;
  • Not meeting the client prior to rejecting the request;
  • Unreasonably rejecting the request/not having evidence to support the decision;
  • Not using one of the eight permitted reasons to decline the request;
  • Not allowing an appeal

Failure to properly respond to a flexible working request can result in the employee resigning and bringing a claim of constructive dismissal and/or discrimination.

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F2 - Flexible working flowchart

Updated on 08.04.2024

Download document

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F4 – Acknowledgment of flexible working request and invitation to meeting to discuss

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F13 – Guidance on conducting meeting to discuss flexible working requests

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F5 – Confirmation of acceptance of flexible working request

Do you have any further documents in relation to adoption?

Yes, please see the documents below:

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AD2 – Acknowledgement of adoption leave and confirmation of dates

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AD3 – Request for employee to attend a KIT day

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AD4 – Welcome back from adoption leave

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AD5 – Failure to return from adoption leave

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AD6 – Adoption Policy

Do you have any further documents in relation to flexible working?

Yes, please see the documents below:

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F1 – How to guide – Flexible working

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F3 – Flexible working request (to be completed by employee)

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F6 – Letter: flexible working request trial period

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F7 – Rejection of flexible working request

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F8 – Invitation to appeal meeting: flexible working request

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F9 – Appeal outcome: flexible working