Education Law Speed Read 09/07/18
9th July, 2018
This week we look at the updated guidance in relation to disqualifications under the Childcare Act 2006 and we cover a case which demonstrates the importance of allowing individuals the right to appeal against their dismissals.
Disqualifications under the Childcare Act 2006
There are two main changes to the guidance – changes to the disqualification by association and changes to the relevant offences.
Disqualification by association
From 31 August 2018, schools will no longer be required to determine that a member of staff providing or being employed to work in child care is disqualified by association. This safeguarding rule required schools to suspend staff living with people with spent convictions for certain crimes pending a waiver from Ofsted.
The rule has been in force since 2014 and it was reported that by 2016, there were over 1,800 waiver requests sent to Ofsted, with none being turned down. One extreme case of the confusion caused came where a head teacher was suspended and forced to apply for a waiver due to her husband having been convicted for domestic violence towards her. The rule has often been criticised as being disproportionate, impractical and not doing anything to adequately safeguard children.
The DfE have now stated in their new guidance that the disqualification by association rules are now “only relevant where childcare is provided in a domestic setting”.
A number of further relevant offences have been added to the Table A disclosure list. However, these will no longer be applicable to schools unless the childcare is being provided in a domestic setting, in which case the disqualification by association rules will continue to be in force.
Many schools will welcome the updated guidance as being the end of an administrative burden that was often criticised. From September, schools should stop asking their staff questions about the legal past of someone living or working in their household as this is no longer relevant. Schools should therefore begin a review of their staffing, recruitment and safeguarding policies to ensure the amended guidance is followed and their staff members are not required to make unnecessary applications to Ofsted for waivers of the disqualification by association rules.
Afzal v East London Pizza Ltd t/a Dominos Pizza
In Afzal v East London Pizza Ltd T/A Dominos Pizza, the Employment Appeal Tribunal (EAT) considered whether it could be fair to dismiss an employee where the employer was of the reasonable, but mistaken, belief that an employee did not have the right to work in the UK.
Mr Afzal had been employed by East London Pizza (ELP) since 27 October 2009 and had the right to work in the UK until 12 August 2016. He had the right to apply for permanent residence in the UK, having lived in the country for five years by that point.
Mr Azfal could not apply before 15 July 2016 for permanent residence, however provided he applied before the expiry of his current leave, he had the right to work whilst his application was being considered.
ELP wrote to Mr Afzal twice in the months leading up to the August deadline, reminding him that he needed to provide evidence that showed he had made an in-time application. ELP suggested to Mr Afzal that he submit his application before 11 August 2016 to avoid any last-minute problems.
However, Mr Afzal submitted his application on 12 August 2016 and attempted to send evidence of this by email to his line manager at 4:28pm. However, his line manager was unable to access the attachments evidencing his application. Although Mr Azfal had made an in-time application and therefore had the right to work, ELP had no evidence that Mr Afzal’s application had been made in-time. Consequently, ELP dismissed Mr Afzal to ensure that it was not employing him illegally. ELP sent notice of dismissal to Mr Afzal by post on 12 August 2016. ELP carried out no procedure before dismissing Mr Afzal and he was afforded no right to appeal.
The Employment Tribunal (ET) held that ELP was justified in dismissing Mr Afzal as this was due to a reasonable belief that his continued employment would have been prohibited by statute. The fact that this belief was in fact mistaken was immaterial. The ET agreed with ELP’s submission that there was nothing for Mr Afzal to appeal against and so it was not unfair to fail to offer him a right of appeal.
Employment Appeal Tribunal
While the EAT agreed that ELP was justified in dismissing Mr Afzal, it was held that it would not have been futile to offer a right of appeal when dismissing Mr Afzal as if the necessary evidence had been provided at an appeal, ELP would have been able to rescind his dismissal safe from civil or criminal sanctions.
The EAT did not reverse the ET’s decision but remitted the case back to the ET to be reconsidered.
This case demonstrates the importance of employers having fair procedures in place in relation to dismissal, including the right of employees to appeal, when issues regarding immigration status arise.
This would ensure that any harm caused by a mistaken belief as to an employee’s right to work could be corrected and would allow an employee to be rightly reinstated upon providing the necessary evidence of his or her ongoing right to work in the UK.
If you have any queries on the above and how it will affect you, please do not hesitate to contact a member of our education team.