A number of significant recent employment cases and imminent legislative changes are affecting employers in the education sector.
Age discrimination & justifying pay policy
In Ewart v The Chancellor, Master and Scholars of the University of Oxford, the employment tribunal held that the dismissal of a University professor under an Employer Justified Retirement Age policy at age 69 was unfair and unlawful age discrimination.
The University claimed that the policy was a proportionate means of achieving the legitimate aim of creating opportunities for younger and more diverse staff. However, whilst the University was successful in showing the policy was justified in a different case before a different tribunal panel earlier this year, the statistical evidence provided by the Claimant in this case indicated the policy had only created a small number of vacancies. The tribunal held that the University had not shown the policy contributed to the achievement of the legitimate aims to a sufficient extent to justify the discriminatory effect.
In Heskett v Secretary of State for Justice, Mr Heskett brought a claim of age discrimination in the employment tribunal. He argued that the pay progression policy indirectly discriminated against younger probation officers, like himself. The changes meant that newly appointed probation officers took 23 years to progress to the top of the pay scale, instead of the previous seven or eight years.
The tribunal found the pay progression policy was discriminatory but it was justified because the Ministry of Justice’s legitimate aim was to agree a “fair policy in straitened circumstances”.
The Court of Appeal is due to hear the appeal in Heskett on 6 or 7 May 2020.
The EAT agreed with the tribunal. The EAT said that there is a difference between justifying a discriminatory policy on cost alone – which is not normally a valid justification by itself – and justifying it on the basis of absence of means. The EAT found that the Ministry of Justice had been compelled to cut costs because of government policy and it had tried to avoid redundancies and had negotiated with the unions.
Particulars of employment
With effect from 6th April 2020, there are additional requirements coming into place in relation to the written terms of employment that staff need to be provided with. Most schools will include these terms in a contract of employment.
The main points to note are that:
- schools should ensure that the information is provided on or before the first day of work.
- the right to these written particulars will apply to all workers not just employees and so schools will need to review their processes to ensure this is complied with for casual members of staff.
- contractual documents will need to be reviewed and may need to be updated to ensure that they include the additional requirements to provide information on the days of the week the individual is required to work (if these are variable how they will be determined?); any paid leave to which the worker is entitled; details of any benefits provided by the employer; any probationary period, including any conditions and its duration; and any training entitlement provided by the employer, including whether any training is mandatory and/or must be paid for by the worker
Statutory parental bereavement leave
From April 2020, there will be a new statutory right for 2 weeks of leave for parents who lose a child under the age of 18, or suffer a stillbirth from the 24th week of pregnancy. For employees with 26 weeks’ service (and qualifying earnings) this will be paid at the flat statutory rate. Whilst most schools would already have supported staff in this way it will be important to consider how it dovetails with existing policies on compassionate leave, absence, and family-friendly leave, and that a consistent approach is taken.
Off payroll contracted staff
With effect from 6 April 2020 the rules that have been in place in the public sector which apply where work is provided through an individual’s ‘personal service company’ will apply to all medium and large employers, which will include most independent schools. The essence of the change is that where a school contracts for services with an individual’s personal services company, then it is necessary to establish whether the individual should be deemed to be “employed” for tax purposes, and if so, the school will have responsibility to account for tax and national insurance. This shifts responsibility for IR35 tax compliance from the personal service company to the school.
The government has just launched a review around the implementation of the changes, but it is thought that this is more about the detail of how the changes will take effect, rather than if.
Although such arrangements are not widespread in schools, there may be some contracted services carried out on this basis and schools should take steps to identify these. HMRC has provided an online check which can be used to help establish the tax status of any such contractors, known as CEST. Although there is no requirement to use this tool we would recommend it, as HMRC have advised that they will be bound by the outcome (providing the information that is input is correct). Schools with services contracts that are caught by these changes should review the contractual documentation that is in place to ensure status and tax are covered off appropriately.
National Living Wage
On 6 April 2020 the National Living Wage for workers aged 25 and over will increase from £8.21 to £8.72 per hour, with corresponding increases to the National Minimum Wage for younger workers.
Schools will need to ensure that any worker paid below this rate has their pay reviewed to take effect on 6 April, even if this may be outside of the usual pay review period.
The vexed question of which hours count as “work” for residential staff, for the purposes of receiving the national minimum wage, should reach its conclusion in February when the Supreme Court considers the case of Royal Mencap Society v Tomlinson-Blake . The Court of Appeal had found that such workers were only working when they were required to respond to call outs, rather than for the duration of the time they were required to be on site. All schools will be hopeful that the Supreme Court does not disagree.
Ethical veganism as a philosophical belief
In contrast to a recent case relating to vegetarianism, an employment tribunal has held at a preliminary hearing (Casamitjana v League Against Cruel Sports) that ethical veganism can amount to a philosophical belief that is capable of protection under the Equality Act 2010. The tribunal held that the beliefs were genuinely held by the claimant in this case and met the necessary criteria:
- it related to a weighty and substantial aspect of human life and behaviour.
- it attained the required level of cogency, seriousness, cohesion and importance.
- it was worthy of respect in a democratic society, not incompatible with human dignity and it did not conflict with the fundamental rights of others.
The case will now proceed to a full hearing to decide whether the Claimant was discriminated against because of his beliefs.
New statutory rates
The government have published the proposed new rates for statutory maternity pay (SMP), adoption pay (SAP) and paternity pay (SPP) and shared parental pay (ShPP).
SMP, SAP, SPP and ShPP are all to increase from £148.68 to £151.20 from 5 April 2020.
The rate of statutory sick pay is also proposed to increase from £94.25 to £95.85 on 6 April 2020.
The National Living Wage for workers aged 25 and over will increase from £8.21 per hour to £8.72 per hour from 1 April 2020. The National Minimum Wage rates will also increase from 1 April 2020:
- from £7.70 to £8.20 for 21 to 24 year olds
- from £6.15 to £6.45 for 18 to 20 year olds
- from £4.35 to £4.55 for 16 and 17 year olds
- from £3.90 to £4.15 for apprentices
The Supreme Court held in Royal Mail Group Limited v Jhuti that it was automatically unfair to dismiss an employee where the person who took the decision to dismiss was not aware that the employee had made protected disclosures and had been misled by the employee’s line manager, who knew of the disclosure and had engineered a dismissal for poor performance.
The Supreme Court agreed with the EAT and overturned the decision of the Court of Appeal, summarising the position by stating “if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.”
DavidsonMorris are established advisers to the education sector. As employer solutions lawyers, we work with education providers and institutions to support with their full people requirements including employment & immigration & legal advice, and human resource & global mobility consultancy.
We understand the commercial and legal challenges facing employers in the sector, and work to support our clients in meeting their people management and planning needs while reducing legal risk exposure. Contact our education sector specialists today.
Last updated: 2nd January 2020