News and guidance

ASCL has been made aware that there have been one or two companies of lawyers/solicitors offering their services to teachers, to fight a class action against the government on the introduction of the career average revalued earnings (CARE) pension scheme.

The government has already accepted there has to be change in light of the Supreme Court’s ruling in July 2019 and has asked the original Employment Tribunal to advise on the changes that need to be made. Find out more about this case on the Teachers’ Pensions website here https://tinyurl.com/sq2enqn

Therefore, there seems little point in members paying for a service that will have little or no effect on the outcome on the Employment Tribunal’s decision. 

We will update you further on any changes when more information becomes available.

Your CPD

ASCL Pensions Specialist Stephen Casey is delivering a Financial Planning for Retirement Seminar on 4 February in Sheffield (www.ascl.org.uk/PensionsFeb) and on 20 May in London (www.ascl.org.uk/PensionsMay) – click on the links to find out more and to book your place.

School leaders often have to deal with complaints from parents about their school’s approach. The rise of social media in particular is complicating matters as parents now have many outlets in which to exchange views.

Schools cannot control what parents say online and leaders often face difficult choices in how to respond. On the one hand, posts can cause widespread damage to reputation and morale and when staff face sustained and hurtful criticism schools should act to protect them. On the other hand, challenging allegations in the public domain can have an incendiary effect and fan the flames of discontent; in many cases the best reaction may be to do nothing. Other options include arranging meetings to try to address parental concerns and/or send a general communication to all parents regarding the use of social media and the importance of following the school’s complaints procedures.

In some circumstances, comments go beyond expressing opinion and may be defamatory. Potential courses of action could include contacting the site host and/or the police, sending a warning letter referring to any parental codes of conduct that may be in place and/or barring the author from the school site. For further information and advice on this issue, please see www.gov.uk/government/publications/schoolcomplaints-procedures

In November, the High Court handed down its judgment in relation to an application for an injunction by Birmingham City Council, preventing protests in the vicinity outside of Anderton Park School. The school had previously been subject to a number of weeks of protest due to its curriculum that includes reference to the Equality Act and the various protected characteristics. Ultimately, the High Court granted the injunction and dismissed the protestors’ claims about discrimination and breach of human rights. The court did not continue the element of the interim injunction that covered social media.

This judgment will be of assistance to other schools that have previously suffered similar protests because of actual or perceived curriculum teaching. While this decision was based on the facts of the case, including what was being taught and the actions by some of the protestors, some of the comments by Mr Justice Warby are helpful to other schools teaching similar curriculums. He concluded, “The matters that have actually been taught are limited, and lawful” and that the actual teaching was “at odds with much of what has been said about the teaching in the evidence of parents”. The protestors had argued that the teaching amounted to “indoctrination”, which was dismissed.

A total of seven in ten teachers (68%) think schools could do more to make assessments less time-consuming for teachers. So how can senior leaders use assessment to reduce their teachers’ workload, improve staff retention and improve student outcomes?

GL Assessment’s new report, Crunched by Numbers? How effective data can reduce teacher workload, will give you three perspectives on how effective data can reduce workload from a MAT, headteacher and a teacher.

ASCL General Secretary Geoff Barton has also contributed and highlights the issue very clearly: “We must stop using bad data – full stop. Obsessive data drops say little that is meaningful about pupils and providing false notions of their progress need to go. A limited number of really powerful assessments through the year is much more meaningful.”

Download your free copy at www.gl-assessment.co.uk/workload The website is packed with ideas and constantly refreshed content from ASCL members’ schools on how assessment can help to reduce workload. As an ASCL Premier Partner, GL Assessment is offering specially-priced packages to ASCL members. Please quote GL2609 when ordering.

Find out more by emailing interest@gl-assessment.co.uk or calling 0330 123 5375 and look online at www.gl-assessment.co.uk

A poll (https://tinyurl.com/y5k6cfhq) for the National Association of Teachers of Religious Education (NATRE) has found that nearly a third of religious education teachers say they are aware of pupils being pulled out of lessons by their parents for a variety of reasons, based not only on religious objections but for other reasons such as to allow them to study another subject.

All schools in England are required to teach religious education (RE). Maintained schools are obliged by statute (section 71 of the School Standards and Framework Act 1998) and although academies and free schools do not have to follow the National Curriculum, they are obliged to teach RE under the terms of their funding agreements with the Secretary of State. Parents have the right to withdraw their child for all, or part, of RE lessons and pupils can choose to withdraw themselves once they are 18.

Schools continue to be responsible for the supervision of any child withdrawn by their parent/s from RE. Schools can emphasise the importance of pupils learning about different faiths and cultures to encourage tolerance and respect of differing views, and to encourage attendance, but, ultimately, parental reasons for withdrawal are irrelevant; schools must comply with any request to withdraw.

Notes on guidance Leader contains general guidance on the law that has been supplied by our Premier Partner for legal and HR services, Browne Jacobson LLP.  If you would like to seek advice from a legal professional please contact Browne Jacobson at 0370 270 6000. ASCL members can also call the ASCL Hotline on 0116 2991122 for support on legal issues relating specifically to their own employment.

Following the DfE letter of 17 September 2019 providing guidance for schools on leaving the EU, schools are concerned about their ability to continuing sharing with or receiving data from organisations within the European Economic Area (EEA).

The government has indicated that data can be continued to be shared into the EEA without additional safeguards, however where data is being received from the EEA, the approach will depend on whether or not there is a Brexit deal.

If there is a Brexit deal, transitional arrangements are expected to be put in place to allow that continued transfer without additional safeguards.

If there is a no-deal Brexit, alternative arrangements should be considered to ensure the continued transfer of personal data. The UK government has indicated that it will seek an ‘Adequacy Agreement’ with the EU, however, it will unfortunately not be able to commence the process of becoming approved until the UK has left the EU and this in turn may take time to finalise.

Until such time, schools should have discussions with any data processors or controllers within the EEA and consider on a case-by-case basis whether any contractual arrangements need revising to ensure that those safeguards are in place. Examples of appropriate safeguards may include putting in place EU Commission approved standard contractual clauses or relying on appropriate derogations under the General Data Protection Regulation (GDPR) to ensure that those data transfers can be made lawfully. Legal advice should be sought as to appropriate manners in which the arrangement can be amended to ensure that any processing can continue within the EU.

To make sure that we can keep you up to date with the latest information and developments and to ensure that we can assist you quickly and easily if you need to contact us for advice, it’s important that you let us know if your job title, school/ college address, home address, email or telephone number has changed. You can change your personal information online; simply log on to www.ascl.org.uk/login using your password, click on the ‘My ASCL’ button and then click on ‘Personal Details’ where you can edit your details. Alternatively, please email membership@ascl.org.uk or call 0116 2991122.

The Court of Appeal handed down its judgment in The Harper Trust v Brazel (2019) in August, confirming that the established practice of paying 12.07% of annualised hours as holiday pay has no legal basis.  The fundamental effect is that employers are not entitled to pro-rate the holiday entitlement of ‘part-year’ workers. This will have a particular effect on those part-year employees who do not have normal working hours, such as sports coaches, exam invigilators and peripatetic music teachers.

Employers are now required to calculate holiday pay using the following calculation for those with no normal working hours: holiday pay = average weekly remuneration for preceding 12 weeks (ignoring weeks where no work was carried out) x 5.6

The effect of this decision is that while part-time workers’ (that is, those who work less than five days per week) holiday entitlement may be calculated on a pro-rata basis, those who work only a proportion of the year but are contracted for the entire year are entitled to the 5.6 weeks’ holiday irrespective of how many weeks they actually work. As such, part-year employees are likely to be entitled to a higher proportion of their annual pay as holiday pay than their full-time equivalent.

It has been widely reported that the trust will appeal to the Supreme Court. Employers therefore need to consider whether to wait and see if this decision is overturned, or whether to consider changing contractual arrangements with affected employees now to mitigate the future impact of this decision.

ASCL has been quoted widely in the media over the recent period on a range of issues.

The focus of our media work before Christmas was on the General Election campaign, although shortly before the election was called we were pleased to respond to a ‘policy win’ for ASCL over the decision by Ofqual to reduce the severity of grading in GCSE French and German.

Early in the election campaign we produced our ASCL General Election manifesto (www.ascl.org.uk/manifesto) and an accompanying press release calling on politicians not to use education as a political football and instead to focus on the things that matter – sufficient funding, teacher supply and an exam system that is less harsh on pupils. It was widely reported and received high levels of social media engagement. We have continued to use the manifesto since the election, including sending copies to the Prime Minister and Education Secretary.

We examined the party spending pledges alongside our partners in the School Cuts coalition, and we were pleased that Labour used ASCL’s ‘True Cost of Education’ analysis in developing its funding plans. Notwithstanding the fact that Labour lost the election, we think it is significant that a major political party drew on our research and we will continue to campaign with all our energies on securing a sufficient settlement for schools and colleges.

Working on your behalf to influence government policy.

ASCL Director of Policy Julie McCulloch highlights some of the ASCL Policy Team’s recent successes and considers the post-election landscape.

I’m writing this the morning after the night before. In one of the most politically turbulent periods for many years, few people predicted a victory for any party on the scale to which we woke up to on 13 December.

While other parties promised sweeping educational reforms, the Conservative’s brief manifesto commitments on education essentially signalled business as usual, with a bit more money to plug the most pressing financial holes. The promised additional funding is welcome – and testament to the relentless work of ASCL and others in highlighting the dire financial straits many of our schools and colleges are in – but it’s not enough.

And it’s not just about the money. Teacher recruitment and retention remains at crisis point. Our punitive accountability system continues to drive competition, narrow the curriculum and penalise schools with the greatest challenges. Our approach to testing and assessment continues to fail the most vulnerable. There is much to do.

Policy ‘wins’

Despite the recent focus on the election, the ASCL Policy Team achieved a number of important ‘wins’ over the last few months. 

We were extremely pleased with the Labour Party’s decision to explicitly use our work on The True Cost of Education (www.ascl.org.uk/truecost) in developing its manifesto. This was a major piece of work for us in 2019, which detailed the cost of the education to which we think children and young people are entitled. The ‘grey book’ accompanying Labour’s manifesto specifically referenced our ‘true cost’ report, and the party’s proposed funding levels explicitly reflected the assumptions we used in the report, including that class sizes should be no bigger than 30, and that all pupils should be taught by a qualified teacher 100% of the time. While Labour’s manifesto will obviously not now be enacted, it’s clear that our work on funding has had an impact, and that was reflected to differing degrees across all the election manifestos.

On 16–19 funding, we were aware that the government had planned to allocate some of the additional £400 million it had promised to the sector on specific ‘high value’ subjects. It was widely thought that this would go to technical subjects only. We lobbied for it also to be included for A levels, so that school sixth forms would benefit as well as sixth form and FE colleges. It has now been confirmed that nine A level subjects will attract this ‘high value courses premium’, meaning a backdated additional £400 per head for thousands of students.

We were also pleased with Ofqual’s announcement in November that it will adjust grading standards in GCSE French and German. We have long argued that modern foreign languages are graded too severely, and that this has contributed to the rapid decline in the numbers of pupils taking these subjects. We hope that this decision will go some way towards reversing this decline.

Finally, we have been pressing the DfE to ensure that the performance data it publishes enables genuine like-for-like comparisons between schools. The DfE took a significant step in this direction in the recent release of the provisional 2019 Key Stage 4 data in Analyse School Performance (ASP). This now includes functionality that enables schools to compare the performance of disadvantaged pupils with other disadvantaged pupils, rather than with their non-disadvantaged peers, as was previously the case.

2020 priorities

Guided by ASCL Council, our policymaking body, our priorities in 2020 will focus on aspects of our education system most in need of reform. 

On funding, we will build on our ‘true cost’ work to look in detail at funding for high needs and SEND. We are also working to provide evidence of how much schools and colleges are now spending on services that never used to be part of their remit – from operating food banks, to employing dedicated mental health professionals. And we will undertake detailed modelling of the impact on school budgets of the proposed £30,000 starting salary for teachers.

On curriculum, assessment and accountability we will progress the recommendations of our Forgotten Third (www.ascl.org.uk/ForgottenThird) commission, further developing the idea of new ‘passports’ in English and maths at the end of Key Stage 2 and Key Stage 4. We will continue to raise concerns about the fitness for purpose of reformed GCSEs and A levels, and to press for a sea change in the way we approach vocational and technical qualifications. We will continue to gather and report members’ experiences of inspection under the new framework, to engage robustly and constructively with Ofsted on how those experiences might be improved and to promote and support strong curriculum thinking across all phases of education.

On ethics, inclusion and equality we are bringing our members’ views and expertise to the government’s current review of SEND. We are also engaged in discussions on a range of challenging issues, including exclusions, mental health, peer-on-peer abuse and what responsibilities school and college leaders should hold in relation to clinical care. And we will continue to encourage a different approach to accountability that rewards inclusion and promotes collective responsibility.

Finally, we will continue to work relentlessly for members on your own pay and conditions, and those of your staff, and continue to hold the government’s feet to the fire on recruitment and retention. We will submit responses to consultations from both the English and Welsh pay review bodies, work with the government on developing the new Early Career Framework, and closely monitor the impact of the government’s recruitment and retention strategy.

New blueprint

Much of this work will feed into our new ‘Blueprint for a Socially Just Education System’. This major piece of work will consider the role that education can play in promoting social justice and equality, and what both policymakers and school and college leaders can do to narrow the disadvantage gap. We have enlisted the support of a number of research organisations in this work, including the Education Policy Institute (EPI), the National Foundation for Educational Research (NFER) and Public First. We will publish a consultation document with some potential recommendations at our Annual Conference in March, and a final report in the autumn.

Julie McCulloch
ASCL Director of Policy
@juliecmcculloch

The recent legal case of Neocleous & Anor v Rees (2019) highlights the importance of checking the text on email footers. The High Court has found that an email chain containing automatic footers can constitute a binding contract to sell land.

The case involved solicitors discussing a property dispute. It was suggested, in email correspondence, that the matter be resolved by sale of the land concerned, a suggestion accepted by the other party. The matter later fell down, and one party didn’t want to proceed. However, the Court decided that, as both parties’ emails had been ‘signed’ by automatic email footers, a contract was in place. The lesson here for academy directors or senior officers is that all letters or emails proposing or agreeing to contract terms should be marked ‘subject to contract’.