Education Law Speed Read – 25/06/18
25th June, 2018
This week we look at where funding should come from for children with special education needs and we look at a case concerning discrimination and high levels of sickness absence.
Funding for children with special education needs
This week’s speed read focuses on the discussion around whether local authorities should fund the entirety provision of assistance for those children with special education needs, or whether some of this should be provided by the schools.
Currently, most local authorities provide schools with up to £6,000 for pupils with an educational health and care plan (EHCP). The cost of providing assistance to those with an EHCP can, of course, rise significantly above this figure, leading to many schools being left with a budget deficit in this area and viewing pupils with special educational needs as costly. Clearly this gives rise to potential discrimination claims.
In 2014, the Children and Families Act was enacted and made it clear that local authorities bear the legal responsibility for the provision of assistance for those with special educational needs. However, many schools are now reporting that councils are withholding up to £6,000 from this funding on the basis that schools have already received this. Schools with multiple students with EHCP’s could find themselves being penalised by their local authority withholding the funding already provided on a number of occasions.
Around 250,000 pupils had an EHCP in January 2017, meaning that schools would be required to find up to £1.4 billion in order to fill the gap in funding. One Head Teacher noted that the agreement they have with the local authority provides for £6,000 to be withheld in relation to the first 9 pupils with an EHCP, meaning the school is required to find £54,000 in its budget to cover the shortfall.
Local authorities are coming under increased scrutiny for this practice, noting that there is no regulation or legal precedent requiring schools to fund the first £6,000 of an EHCP. Many have stated that, provided schools have done everything possible to help the student and have complied with their duties under the Equality Act, local authorities are legally obliged to provide funding for everything associated with providing assistance to those with special educational needs.
Many schools are calling for a review of this practice or a determination by a court as to its legality. Until this is forthcoming, local authorities may continue to withhold this funding, leaving schools with a potentially significant amount of money to find to enable them to comply with their own legal duties to students.
DL Insurance Services Ltd v O’Connor
In DL Insurance Services Ltd v O’Connor the Employment Appeal Tribunal (EAT) upheld the decision of the Employment Tribunal (ET) that DL Insurance Services Ltd had discriminated against Mrs O’Connor for issuing a formal warning in response to her high level of sickness absence.
Mrs O’Connor was employed by DL Insurance Services Ltd (“DL”) from 2005. Both parties accepted that Mrs O’Connor had a disability for the purposes of the Equality Act 2010, which caused her to take a high level of absences at work from 2007 onwards. In light of this, DL made reasonable adjustments and took no action against Mrs O’Connor in 2013 and 2014 despite her absence levels surpassing the trigger points set out in the DL’s sickness absence policy.
In March 2016, Mrs O’Connor was told that there would be a disciplinary hearing regarding her absences between April 2015 and March 2016. At the time of her disciplinary hearing, she had been absent from work for 60 days in a 12 month period (which was six times over the trigger threshold in DL’s sickness policy).
Despite acknowledging that Mrs O’Connor had genuinely taken her absences because of her disability, she was issued with a 12 month written warning. The consequence of this was that she would not receive sick pay for the duration of the warning.
Mrs O’Connor appealed on the basis that it had not been made clear to her what levels of attendance might be acceptable in view of her condition. Her appeal was dismissed.
On 10 May 2016, Mrs O’Connor was absent for a disability related reason and she was not paid for this absence. As a result, Mrs O’Connor came to work after this date, despite her having a fit note from her doctor stating that she was not fit to work during 10-13 May 2016.
Mrs O’Connor brought a claim against DL for discrimination arising from disability under section 15 of the Equality Act 2010.
The ET held that DL had discriminated against Mrs O’Connor because of something arising in consequence of her disability.
DL had argued that although they had treated Mrs O’Connor less favourably, this treatment was a proportionate means of achieving a legitimate aim. DL stated that their legitimate aims were to ensure adequate attendance levels and to improve the attendance levels of Mrs O’Connor.
When assessing the proportionality of the written warning as a means of achieving DL’s legitimate aim, the ET took into account that DL had not followed their own sickness absence policy which stated that managers should consult Occupational Health prior to taking any disciplinary action.
Further, the ET took into account that DL could not explain how they considered that a written warning would improve the claimant’s absences, when it was accepted that her absences were genuinely disability related.
Consequently, the ET held that the disciplinary warning was not proportionate and Mrs O’Connor’s discrimination claim succeeded.
Employment Appeal Tribunal
DL appealed to the EAT, arguing that the ET had focused too much on the procedure taken by DL when it assessed whether DL had objectively justified the written warning.
Further, the EAT recognised that DL had acted very reasonably with regards to Mrs O’Connor over many years and had adjusted its regular policy on absences.
Despite this, the EAT upheld the view of the ET that DL could not provide evidence to show that their treatment of Mrs O’Connor was a proportionate means of achieving their aims.
Further, the ET had not placed too much emphasis on DL’s failure to follow procedure. Instead, the failure of DL to follow its own processes (such as failing to refer Mrs O’Connor to Occupational Health) all contributed to DL’s lack of specific evidence to show that its actions were objectively justified.
In addition, the EAT noted how the disciplinary officer had not consulted with Mrs O’Connor’s Manager before the hearing to establish what impact the written warning would have on her.
DL had not therefore discharged the burden of showing that the written warning was a proportionate means of achieving a legitimate aim.
The EAT in this case noted that the employer had taken a “very careful approach and had treated the Claimant with great sensitivity and sympathy” by allowing her to take longer absences than their policy allowed. Despite this, the EAT still found that their actions in issuing a formal warning could not be objectively justified.
Therefore this case is a warning to employers that before they taken any formal action against an employee for taking long periods of sickness absence, they follow a procedure that allows them to evidence that their actions are justifiable and proportionate in relation to that specific employee.
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.