Education law digest – Summer term case law update

Salaried term-time workers entitled to minimum wage outside of term-time

In the case of Lloyd v Elmshurst School Limited:

• Ms Lloyd was a salaried part-time Learning Support Assistant, working 3 days a week during term time (36 weeks per year) and her annual salary of £8, 568 was paid in equal monthly instalments.
• As a salaried worker on an annual contract, the national minimum wage is calculated by dividing the salary received in the pay reference period (which is ascertained from the contract of employment) by the total number of hours worked.
• According to her employment contract she was ‘entitled to usual school holidays as holiday with pay’, but the contract did not specify the rate of pay during school holidays, her hours of work or set out her annual salary.
• The school calculated Ms Lloyd’s pay on the basis of 40 weeks: 36 weeks of term time plus 4 weeks of statutory holiday (the school accepted that, in accordance with the Harpur case, this should have been 5.6 weeks) whereas Ms Lloyd argued that, as her contract entitled her to the usual school holidays with pay, it should be calculated over 52 weeks.
• Ms Lloyd brought a claim for unlawful deduction of wages as if her pay was calculated over 52 weeks she would have received less than the national minimum wage.  The Employment Tribunal found that 40 weeks was the applicable period on the basis that Ms Lloyd only worked during term-time.  Ms Lloyd appealed.

The appeal was successful as the Employment Appeal Tribunal held:

• Basic hours for the purpose of National Minimum Wage Regulations are determined with reference to the employment contract, and could include hours which were not working hours.  In this case, the employee was entitled to be paid for the usual school holidays.
• Where salaried workers are entitled to their normal salary during a period of absence, this period can contribute toward their basic hours, even if it is not an absence during which the worker would usually be working.
• The Employment Tribunal had erred in focussing in when Ms Lloyd actually worked, rather than identifying her basic hours from the employment contract alone.

Therefore it is important to ensure that the contract is correctly drafted and, where there are salaried workers entitled to their salary during contracted periods of absence, they are paid the National Minimum Wage for the entirety of this period, and not just the actual period worked.

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Data protection: parents are not entitled to copies of slides and names of facilitators involved in relationship and sex education class

In the case of Page v (1) The Information Commissioner and (2) School of Sexuality Education heard in the General Regulatory Chamber Information Rights First-tier Tribunal:

• The Education Act 1996 requires schools to have a sex education policy. Parents can withdraw their child from sex education lessons
• The School of Sexuality Education (SoSE) taught a lesson on consent in a relationships and sex education lesson at Haberdsher’s Hatcham College
• Ms Page’s daughter attended the lesson.  Afterwards her mother made a freedom of information request for various information, including copies of the slides used in the lesson and names of the people who had delivered the lesson.  The School provided some information and allowed her to see the slides but refused to provide the names or copies of the SoSE materials, relying on the personal data and commercial interests exemptions respectively.
• Ms Page asked for a review.  This upheld the outcome and Ms Page referred the matter to the Information Commissioner (IC).  The IC upheld the decision, finding that the slides constituted commercial intellectual property which the school was not meant to retain, and therefore disclosing the slides would undermine SoSE’s ability to exploit its own intellectual property and the names of the facilitators did constitute personal data.
• Ms Page appealed, arguing that there was an implied right under the Education Act to teaching materials and that she had a legitimate interest in knowing who was teaching her child.
• The court rejected the appeal, holding that the right to remove a child from a sex education lesson did not create an implied right to copies of teaching materials.
• Importantly, SoSE made it clear that the slides were confidential should not be retained by the school and the school had shown Ms Page the materials and that having a safeguarding framework in place negated the need to know the names of the facilitators.

The case highlights that sex education policies need to be publicly available and that schools should only withhold information when it can be justified.

If you have any questions about either of the cases discussed above please get in touch with Rachel Blythe, or another of our expert Education lawyers.