News and guidance

ASCL’s new Director of Policy Kate Godfrey sets out what the policy department does and how it contributes to the work of the association.

I am honoured to have been appointed Director of Policy at ASCL and pleased to have this opportunity to introduce myself to you. As we continue to develop further the policy offer at ASCL, I hope to be a regular columnist for Leader – keeping you up to date on our research, publications and hopefully, on our successful policy interventions on behalf of children and young people, schools and colleges, and ASCL members. When we talk about policy interventions, we are talking about the process of working with government and the broader political process to understand, scrutinise and improve education policy. In policy, we work with the DfE, opposition parties, think-tanks, the press, research organisations, school and college leaders, the House of Lords… and anyone else who can help us channel the expertise and experience of our members to give them a voice in public policy and public debate.

Evidence

In particular, we argue (sometimes over and over again) for evidence-based policy. ASCL members are particularly equipped to see and understand the impacts of a particular policy change, funding cut or directive before schools and colleges are charged with implementing them. We scrutinise education system leadership and policy change as it happens and, by doing so, help to improve it.

The biggest testament that you can pay to any policy professional is to say that they have made a difference. Under the leadership of former Director of Policy Leora Cruddas, the Policy Team at ASCL has developed a reputation for doing just that. ASCL staff know that when they go into a meeting, they are likely to be told about specific policy changes and successes resulting from the work of the organisation as a whole.

As a policy professional with nearly 20 years’ experience gained working with governments, political parties and campaigns, I was drawn to ASCL by the chance to build on Leora’s work with our expert Policy Team – working directly with the people who are leading schools and colleges on how we must be listened to on education reform.

Engagement

With my background in ‘engagement’ – opening up policy work and processes so that the people who are most affected and who best understand the impact of policy are those who helped to make it – what I bring to ASCL is an understanding of how we use standard tools, including policy consultations, formal research, publishing, communications and departmental and parliamentary intervention, to amplify the expert voice of our members and Policy Team. And in this Parliament, we have a great opportunity.

At no time in my adult life has education registered as so important as in the present political climate.

We saw this at the recent General Election, as millions of parents and concerned families worked together to tell politicians how important and how valued schools and colleges are, not just to them but also to communities and businesses, and to the country. During the election campaign, the financial health of schools and colleges climbed to within the top two or three issues regarded as most central to the future of our country.

Working together with that kind of urgency and care, we’ll be able to embed the values for which ASCL has consistently advocated – an education system in which all children and young people achieve, and one that is designed on behalf of all children and young people.

Kate Godfrey
ASCL Director of Policy
@KateGodfrey_

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

ASCL General Secretary Geoff Barton said the additional funding for schools announced in July was a step in the right direction. But he raised concerns that it was saved from elsewhere in the education budget, and he urged the government to address the severe underfunding of post-16 education. His comments were reported in The Guardian, iNews, and Schools Week, and Geoff wrote a blog for the TES website. ASCL Deputy General Secretary Malcolm Trobe appeared on BBC’s Victoria Derbyshire Show to discuss the issue. Geoff also commented on the government’s plans for the English Baccalaureate. He said EBacc increasingly looked like “the performance measure that time forgot” and that it was hard to see what purpose it serves any more. “We would have preferred the government to let it quietly curl up and wither away,” he said. His comments were reported by BBC News online, Schools Week and iNews, among others.

Earlier in July, commenting on the news that the teachers’ pay award will once again be capped at 1% overall, Geoff said the government was “playing fast and loose with children’s education.” He was quoted by BBC News online and he was interviewed by Nick Ferrari on LBC Radio.

Geoff and Malcolm also appeared on radio and television on a wide range of other topics. Malcolm was interviewed by Sky News about recently published pupil exclusion statistics, and he was interviewed by a number of BBC local radio stations over a story about school lockdown procedures. Geoff was interviewed on BBC Radio 4’s Today programme, and BBC Radio 5 Live, over a BBC story about the number of children investigated for ‘sexting’. Geoff was also interviewed by BBC Look East for an item about the impact of the school funding crisis.

As a school or college leader, you need information and advice relevant to your role. From financial management to understanding the latest Ofsted framework, ASCL gives you access to the very best professional advice through our publications, telephone Hotline and legal support.

To find out more visit: www.ascl.org.uk/join-us/

In a series of new short articles in Leader, we’ll be introducing you to our various teams here at ASCL. In this first article, we’d like you to meet our Legal Team.

ASCL has its own established in-house Legal Team based at ASCL’s headquarters in Leicester. It comprises a team of specialist, experienced employment and regulatory solicitors, dedicated to supporting senior professionals within education. They provide legal advice, support and representation to members throughout the UK on matters connected with their employment. They also advise ASCL’s Member Support Directorate, including the ASCL Hotline, and regional and field officers.

Our solicitors represent our members in proceedings in Employment Tribunals and all relevant professional disciplinary bodies, such as the Disclosure and Barring Service (DBS), National College for Teaching and Leadership (NCTL), Education Workforce Council (EWC) and the General Teaching Council for Scotland (GTC(S)). They are also regularly called upon to support members with criminal enquiries arising from their employment and inquests.

Sarah Linden,
Senior Solicitor

Sarah leads ASCL’s Legal Team. She advises on all aspects of employment law, representing members in a wide range of claims, including discrimination, unfair dismissal, Transfer of Undertakings (Protection of Employment) regulations (TUPE) and whistleblowing. Sarah has successfully acted for ASCL members in some of the most complex, high-profile proceedings brought by the NCTL and she is regularly instructed to act in EWC and GTC(S) proceedings. Before joining ASCL in 2010, Sarah trained and qualified as an employment solicitor in private practice. Sarah holds a master’s degree in employment law.

Faisal Sameja,
Deputy Senior Solicitor

Faisal has been with ASCL’s Legal Team for two years, having previously worked as a solicitor at Leicester’s De Montfort University. Faisal has a wealth of experience and knowledge within the education sector. After training in private practice, Faisal specialised in employment law and advises on all aspects of contentious and non-contentious employment law. Faisal is currently completing his master’s in employment law.

Aman Patel,
Solicitor

Aman is an experienced Employment Solicitor who, having been with ASCL for almost ten years, is familiar with the multitude of issues that ASCL’s members face. He has successfully represented members in cases before the Employment Tribunal and the Employment Appeals Tribunal. Aman has a special interest in data protection and contractual issues.

Tim Glover,
Consultant Solicitor

Having previously worked as ASCL’s Senior Solicitor for almost ten years, Tim continues to contribute to the work of the Legal Team as its Consultant Solicitor. He advises members and ASCL’s officers in connection with employment law and professional regulation. Tim has a background in both employment law and personal injury. He regularly successfully appears on behalf of members in hearings before the NCTL and EWC, earning himself a reputation as a fearsome advocate.

Gillian Rawson,
Legal Administrator

ASCL’s solicitors are ably supported by Gillian, who administers their practice management standard and generally keeps them in check.

Students make better progress with GCSEPod.

GCSEPod is an awardwinning education publisher of digital learning and revision content for students working towards GCSE qualifications. Data shows a direct correlation between high student usage and improved Progress 8 scores (and other accountability measures).

GCSEPod offers phenomenal value: teacher-written subject knowledge content for 20+ subjects in bitesize digital chunks, mapped to exam specifications for not more than the cost of a set of text books or study guides for one or two subjects. Included is a 25,000 strong Question Bank and knowledge-gap personalised playlists to fill any holes in understanding.

A total of 20% of the UK’s secondary schools use GCSEPod in the classroom and to flip learning, set homework, monitor progress and provide additional personalised support. GCSEPod appeals to ‘millennials’, consuming content through desktops, laptops and mobile devices (73% of usage is outside school hours).

GCSEPod frees up valuable teaching time to allow teachers to do what they do best – teach.

ASCL members receive a 5% discount on subscription costs. Until October half-term, GCSEPod is offering members the added incentive of free set-up, usually charged at £250 – quote ASCL added value 2017 to apply.

To find out more visit www.gcsepod.com or call 0191 338 7830.

From all of us at ASCL, we hope that there was much for your students and staff to celebrate this exam results season. Following the publication of this year’s exam results, in our press releases, we focused on several key aspects that the government needs to urgently address (see below). However, we hope you’ll also note that we kept the main story precisely what it ought to be – a celebration of the achievements of students at all levels, and a tribute to the staff who helped young people to gain the grades they need.

A level decline in creative subjects and languages

This year’s A level results show that entries in music, drama, French and German are continuing to decline as a result of the severe funding pressures on schools and colleges.

Schools and colleges are having to cut courses in these subjects because the relatively small number of candidates signing up to them means they are not financially viable to run. This reflects the severe budget pressures on post-16 education which has suffered significant real-terms cuts since 2010.

ASCL is concerned that this trend, combined with a huge drop in AS level entries as a result of government reforms, is narrowing the curriculum and reducing student choice.

Commenting on results day, Geoff Barton, ASCL General Secretary, said: “Congratulations to the students who are celebrating results in A level, AS levels and vocational qualifications. Today is about their achievements.

“Beyond today, however, the government must get to grips with the continuing decline in entries to music, drama, French and German.

“These subjects are vitally important to the future of young people and to the economy.

“However, the level of funding for post-16 education is simply not sufficient to sustain courses with relatively small numbers of students, and many schools and colleges have no alternative other than to cut these courses. Increasingly, they will be available only in the private sector, making a mockery of the government’s claim to be promoting social mobility.

“The decline in A level entries means there will be fewer teachers in these subjects in the future making them even more difficult to sustain.

“Combined with the decline in AS level entries as a result of the government’s ill-conceived decision to decouple these qualifications from A levels, we are seeing a significant narrowing of the post-16 curriculum. The government must take heed of these statistics and act urgently to improve the level of investment in post-16 education and the uptake of these important subjects.”

Government reform has sounded death knell for AS levels

A survey of school leaders shows that 65% of respondents have cut the number of AS level courses they offer since the process of ‘decoupling’ them from A levels began – and that nearly 90% expect to do so in the future.

A snapshot survey conducted by ASCL in England found that 65% (112 respondents) have removed AS level courses from the curriculum since 2015.

It also found that 86% (148 respondents) expect to remove AS courses in the future. The findings come as the results of this summer’s AS and A levels show that the number of entries for AS subjects fell by 42% in 2017.

Geoff Barton, ASCL General Secretary, said: “It is increasingly clear that government reforms have sounded the death knell for AS levels.

“AS levels allowed students to study four subjects knowing they would all count towards a qualification, either an AS level or a full A level.

“They were intended as a way of broadening the curriculum and were valued by students, employers and universities.

“But the government has decided – against the advice of virtually everybody in education – to make them standalone qualifications which no longer count towards the final A level grade.

“Students now have to decide on their final three A level choices at the outset, and schools and colleges are increasingly focusing on these qualifications to maximise teaching time, rather than holding exams for AS levels in Year 12 which do not count towards the final grade.

“They are under severe funding pressures and cannot afford to run a suite of standalone AS levels.

“As a result, we are returning to a situation where students typically study three rather than four subjects in post-16 education.

“The great benefit of the old system was that it gave students a broader range of knowledge and allowed them to keep their options open for longer.

“The decision to decouple these qualifications was an entirely unnecessary reform which is narrowing the curriculum and reducing student choice.”

GCSE pupils and teachers have performed miracles

Commenting on this year’s GCSE results, Geoff Barton, ASCL General Secretary, said:

“Congratulations to the pupils and their teachers on this year’s GCSE results which have been achieved in very challenging circumstances. They have performed miracles amidst a sea of curriculum change which continues unabated next year. They deserve tremendous credit for their hard work.

“We have once again seen a decline in entries to subjects which are not included in the English Baccalaureate. The evidence is clear that the government’s reforms are narrowing the curriculum and we think this is to the detriment of our young people and to the country.

“We are concerned to see a slight decline in the overall rate for grades C/ 4, and above, and fear that this may be the result of driving children down this narrow academic route which does not necessarily suit every child. In addition, the new reformed GCSEs are more challenging and children sit more exams.

“These factors are putting young people under great pressure and creating increased stress and anxiety. We are increasingly concerned about their wellbeing and we will be raising this issue with the DfE as a matter of urgency.

“School and college leaders are firmly committed to raising standards. But the government has to understand that this is not achieved by putting young people and teachers under intolerable pressure. The solution lies in proper funding for education, and improving the supply of teachers into the profession, not by constant meddling with the curriculum.”

New GCSEs are increasing stress and anxiety

A pupil taking a typical set of new reformed GCSEs will sit about eight hours more exams than under the old system, analysis by ASCL has found.

ASCL is concerned that the new GCSEs – which are also more challenging – are already causing increased stress and anxiety to pupils, and that this will intensify next year.

ASCL compared the exam timetables of two students sitting a similar set of exams under the old system and the reformed system.

Student A, who took old-style GCSEs in the summer of 2016, sat 18 exams – the total length of which was 24 hours and 30 minutes.

Student B, who will take new GCSEs in the same subjects in the summer of 2019, will sit 22 exams – the total length of which will be 33 hours.

Geoff Barton, ASCL General Secretary, said: “We have already had reports from members of increased stress and anxiety among pupils this year, and this will intensify next year.

“We know from numerous reports that there is a rising tide of mental health issues among young people and we are concerned the new exams will make the situation worse.

“The new GCSEs are more challenging, and there are more papers, and this is putting severe pressure on young people. We support a robust qualification system, but it has to be balanced against the welfare of young people, and we are not sure the balance in the new system is correct.

“We will be talking to the DfE to see if there are ways to mitigate the impact on young people.”

We have once again seen a decline in entries to subjects which are not included in the English Baccalaureate. The evidence is clear that the government’s reforms are narrowing the curriculum and we think this is to the detriment of our young people and to the country.

ASCL has published a factsheet about the new GCSEs which can be downloaded from www.ascl.org.uk/GCSEfactsheet

Ofsted is currently consulting on an improved approach to the short inspection regime. The consultation focuses on two proposals. First, that when a short, Section 8 inspection converts to a full inspection, the full inspection will be completed within a maximum of 15 working days, rather than the current 48 hours. This will give schools time to consider and respond to the feedback from the short inspection. It will also allow inspectors to be given notice of an inspection and an idea of the number of days they need to be away from their own school.

Second, a full section 5 inspection will automatically take place where Ofsted has prior evidence that a school is in complex circumstances (about one in five cases). It is expected that most good schools will still receive short, Section 8 inspections, and most will stay good.

If the proposals are accepted, it is expected that the changes will take effect immediately after the October half-term this year. The consultation closed in August.

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 have a specific legal issue relating to your role as an employer, we recommend that you seek advice from a qualified legal professional. Members can also call the ASCL Hotline on 0116 299 1122 with respect to legal issues relating specifically to their own employment.

There has recently been a spike in the number of queries arising out of parental complaints related to decisions on fixed-term exclusions. It is important that schools deal with such issues in accordance with the appropriate legal framework to ensure that matters are handled correctly and additional work is not generated.

There is a right for parents to make representations about all exclusion decisions regardless of whether the exclusion is for a fixed period or permanent. The nature of that right varies in line with the severity of the exclusion.

For permanent exclusions or fixed-term exclusions that result in more than 15 days of exclusion in a term, there is a right to make representations at a meeting of the governing body that must be held within a 15 school-day period.

For fixed-term exclusions of between six and 15 days, governors must meet if requested by the parents. In cases where the exclusion is for less than six days, parents may still make representations to the governing body but there is no right to a meeting. The right to make representations provides parents with an opportunity to raise concerns or complaints about the exclusion. This right is provided under the legal framework for exclusions and it must be enabled in those circumstances.

In light of that framework, it is not appropriate for a school’s complaints policy to be used to deal with exclusion decisions. It would be inappropriate, given the statutory rights provided for under the exclusion framework, and it provides additional stages of consideration that run contrary to the exclusion framework.

Confusion is often caused in the drafting of the complaints policy as the limits on the application of the policy are not always clearly defined. Schools should consider reviewing these policies as soon as possible to ensure that such complaints are excluded under the policy where another avenue of appeal is available to the parent, as in the case of an exclusion.

An amendment of this sort should assist in clarifying the different processes available and reduce the need for lengthy procedural arguments taking place with parents.

Ofsted recently disclosed statistics that highlight the low success rate of challenging inspection outcomes. The TES reported that no school has managed to change or quash an inspection report following a legal challenge in the last three years. Additionally, in 2015/16, 197 state schools made formal complaints but none resulted in an overall judgement grade change.

Schools may feel disheartened by these figures and organisations within the sector have stated that they make Ofsted appear ‘infallible’ and are indicative of a flawed complaints system.

Ofsted’s complaints process can indeed be a source of frustration. The timescale for response (30 working days) can leave a period of uncertainty and the school will need to separately consider whether it is appropriate to make a case for publication of the report being withheld. The amount of time, effort and cost involved in pursuing a complaint, let alone a legal claim, should not be underestimated and we would certainly advise schools to carefully consider and take advice on the outcome they are hoping to achieve and examine whether this is realistic.

However, although the recent statistics may paint a glum picture, ‘success’ is not impossible where there is a focused and justifiable complaint, particularly one that goes to the heart of Ofsted’s process or conduct. ‘Success’ in the form of an overall judgement change is highly unusual (understandably, few schools feel able to commit to the inevitable expense of formal legal proceedings) but it is not uncommon for Ofsted to amend judgement area grades, issue an apology and amend the narrative of the report.

The ASCL Benevolent Fund (ABF) is an important element in the association’s policy of providing protection and care for all of its members, past and present, and their dependants. While most members, active and in post, are unlikely to need help, a serious accident, redundancy, chronic illness or disability can change the situation quite traumatically.

Whether it is a short-term financial crisis or a long-term problem, the fund stands ready to help. If you know someone who may benefit from the fund or if you think you would benefit yourself, please call 0116 299 1122 or find out more online at www.ascl.org.uk/benevolentfund

Retirement need not mean the end of your involvement with ASCL. We have valued your membership and hope you feel the same. By becoming an associate member, you can continue to enjoy many of the benefits of ASCL membership at a reduced cost.

Associates continue to receive ASCL publications, including Leader and a regular associates newsletter and can access our website www.ascl.org.uk There is representation through an elected Associates’ Committee, an annual reunion lunch and committee involvement at local level. Associates also have the chance to give something back through the Associates Voluntary Service, which offers assistance and support to members still in post.

Associate membership is available either by payment annually or by a one-off payment for a lifetime subscription. Join as an associate member today and find out more about how we can support you in retirement – see online for more details: www.ascl.org.uk/associates

If so, make sure you don’t miss out on the latest information and tell us of any change in job title, school/college address, home address and email.

You can change your personal information online; simply log on to www.ascl.org.uk using your password and then click on ‘edit your details’ (in the gold ‘my account’ box on the left-hand side) and update your details. If you have moved to a new school/college or have a new position, please email membership@ascl.org.uk

Partnerships increasingly feature throughout the sector, both formal and informal, supporting school and college improvement, the quest for greater creativity and innovation for students and to create financial resilience to ensure longevity and sustainable provision.

At ASCL we work closely with a group of commercial partners who we believe subscribe to our vision and values, and who are keen to support members and their schools/ colleges and, who endeavour to operate responsibly in support of environmental and social issues. An international campaign launched in 2014 (Business Backs Education) continues to encourage the private sector to support educational initiatives as part of their ongoing corporate social responsibility commitment. ASCL can help to facilitate this by expanding its portfolio of commercial partners and we are therefore pleased to announce several new partners with whom we will be working more closely in the future. Members can access additional benefits either through a range of discounts for personal goods and services or via support offered to their schools and colleges.

New Premier Partners for 2017/18 include:

• Fischer Family Trust (FFT) – specialists in evaluating, analysing and benchmarking school performance using national education datasets
• InVentry Ltd – offering sign-in and visitor management solutions to the education sector
• Sage (UK) Ltd – specialists in providing payroll services related to the education sector

In addition, we are working with Genesis Choice, which offers members personal-insurancerelated products and services.

For further information about the benefits available from these and other partners, see the newly updated ASCL member benefits booklet www.ascl.org.uk/addmembenefits

This core document for academies has been reviewed and updated and the revised version was published towards the end of last term (see https://tinyurl.com/oqg788t).

As in previous versions of the handbook, a summary of the changes appears at the beginning of the document from pages 5–8. The underlying theme continues to highlight the importance of the Nolan Principles to engender probity and transparency in all matters financial. Attention is also drawn to the need for ongoing risk analysis, particularly where trusts are in transition. ASCL Guidance: Due diligence and risk management will support members on this – see https://tinyurl.com/y9n2xo5x

Governance

This edition of the handbook gives greater clarity on the roles of members and trustees, with a focus on segregation and skills. Trusts must not appoint employees as members unless permitted by their Articles of Association. The newer model Articles covers this but trusts that are longer established and are operating with an older version of the model Articles may wish to adopt the revised version as a protection on this issue.

There is also greater clarity in the 2017 version on the duty of members to appoint the trust’s auditors and receive the annual audited accounts – interpretation on the basis of previous versions of the handbook may have this responsibility delegated to trustees in practice.

Financial control

Clause 2.3.5 specifically mentions the protocol for setting executive pay, stating that Trust Boards must ensure that decisions are based on robust evidence and that they reflect the roles and responsibilities of an individual.

Clause 3.3.1 now includes repercussive transactions alongside novel and contentious transactions in requiring specific Education and Skills Funding Agency (ESFA) approval.

Financial health and efficiency

Clause 1.5.11 notes that ESFA may prescribe an independent financial review of a trust’s financial health and efficiency where there are concerns but these are not sufficient to issue a Financial Notice to Improve (FNtI). We are keen to understand exactly what criteria will be applied in order to implement this and we are in discussions with ESFA over this.

The Supreme Court has allowed the appeal by the trade union UNISON against the legality of the current system of Employment Tribunal fees, unanimously holding that the fees regime introduced in 2013 is unlawful.

There has been a 79% decline in claims since the fee regime was introduced in 2013, attributed to affordability. This figure has been used to evidence that the Fee Order went well beyond the original intentions that included deterring weak and vexatious claims and, in fact, acted as a barrier to justice.

It is an expensive day for the government. Justice Minister Dominic Raab has said: “We will take immediate steps to stop charging fees in employment tribunals and put in place arrangements to refund those who have paid.”

This figure is estimated to be in excess of £27 million.

It is a potentially expensive decision for school employers as the sharp drop in tribunal proceedings over recent years may soon seem like a short period of respite as once again the number of Employment Tribunal claims looks set to rise.

So, is this the end of tribunal fees for good? Given the amount generated by the fee regime in spite of a 79% drop in the number of claims, it is difficult to contemplate that the government will scrap the fee regime entirely. A lesser fee resulting in an increase in claims could be just as profitable and go some way towards mitigating the money that will inevitably be spent putting this injustice right.

Schools looking to convert to academy status should be aware of the more rigid approach currently taken by the DfE in respect of deadlines. While the DfE has always imposed deadlines for the satisfaction of various conditions (for example, the completion of Commercial Transfer Agreements and leases), the DfE has been generally flexible in enforcing these.

Recently, however, we have seen a hardening of this approach. Conversion dates have been postponed, even when the outstanding issues are minor. While this approach should prove to provide more certainty in the long-term, it is causing problems in the short-term, as local authorities (LAs) adjust to meet these demands. Schools should therefore be mindful of this change of approach and plan for these contingencies when looking at proposed conversion dates.

Schools and colleges are having to work within ever tighter budgets and many are looking at new ways to generate some much-needed income – by employing a dedicated fundraiser or by entrepreneurial activity that creates income where previously there was none.

If the decision is made to look to fundraise, there are regulations that schools and colleges need to be aware of. The Institute of Fundraising (IoF) and the Public Fundraising Regulatory Association (PFRA) created The Code of Fundraising Practice (https://tinyurl.com/yaprho8g) that outlines the standards expected of all charitable fundraising organisations across the UK. An awareness of the standards and requirements is needed to ensure good practice and to safeguard schools’ and colleges’ ethical reputation.

While in the majority of cases, schools and colleges have a good dialogue and positive relationship with parents and guardians, sometimes difficulties can arise and may cause considerable stress for school and college leaders. Although there is no simple way of dealing with difficult issues, leaders do have some tools at their disposal that can help them manage any situation that comes up.

Banning from the premises

Where a parent has caused a disturbance on the school or college site, a school or college may want to take action to restrict their access to the premises. Any maintained school, academy or college can decide that they want to remove the lawful authority for someone to access their land so that a person would commit a criminal offence if they entered the site. Sending a letter that sets this out to the parent generally stops issues happening again.

Vexatious complainants

Occasionally, some parents may become persistent complainants that use the complaints process unreasonably, for example, sending excessive correspondence, making unreasonable demands or seeking to pursue complaints that have reached the end of the complaints process. Schools and colleges can treat these complainants as vexatious if there is a statement in the complaints policy or a separate policy that expressly covers these scenarios, and the actions that the school or college will take when faced with them.

Restricting communications

If a parent continually contacts the school or college in a way that is unreasonable, it is possible to restrict their contact to a single method (for example, email) and/or to a named single point of contact in the school or college. The parent can be told that their communications will not be answered, unless in an emergency, other than through the designated route. Restricting communication in this way prevents lots of staff members being involved in the issue and means that the school or college has more control about how it responds.

Settlement agreements in the education environment are not uncommon. In the right circumstances, they enable the school to ensure a relatively amicable parting of ways and, particularly in the case of teachers, deal with (what can feel like) notice periods that go on forever.

However, notice can be a problem. Specifically, the tax treatment of notice.

Payments in lieu of notice are known as PILONs. In the commercial sector, PILONs are typically dealt with by way of a PILON clause contained within the contract of employment. Such clauses contractually entitle an employer to terminate an employee’s employment with immediate effect and make a payment in lieu of his/her contractual notice period. If a PILON payment is contractual, it is subject to income tax and national insurance (NI) contributions and the employer has to operate pay-as-you-earn (PAYE). In an education setting, more commonly than not, contracts are silent on the point of PILON and therefore any PILONs made are termed non-contractual.

Historically, non-contractual PILONs of up to £30,000 have potentially been able to be paid ‘tax free’. However, Her Majesty’s Revenue and Customs (HMRC) wants to change this to the extent that, by April next year, all PILONs (whether contractual or not) are expected to be taxable.

At the moment, we find ourselves in a grey area where the tax treatment of a non-contractual PILON depends on the specific facts of the situation. If PILONs are found to be an automatic response to a termination (that is, not dealt with by the school on a case-by-case basis), then they are likely to be taxable. When making a PILON, the school should ask itself the following:

• Does it normally pay in lieu of notice?
• If so, is there an expectation that the outgoing employee will recover the full amount of their notice period irrespective of circumstances?

If the answer to both of the above is ‘yes’, then the notice element of the payment should be paid subject to income tax and national insurance contributions (both employers and employees).

If the situation is not clear cut then the prudent approach is for the school to treat the PILON as fully taxable. If, however, there are good arguments for the PILON not being taxable and the school is willing to proceed on this basis then, to a certain extent, the school can protect itself by ensuring that all settlement agreements contain a tax indemnity in its favour that, if HMRC disagrees with its analysis, will allow it to recover the tax and any employees’ national insurance contributions from the former employee. Note, however, that it will still be liable for employers’ national insurance contributions, it may incur interest and penalties that are not covered by the indemnity and there could be practical issues in actually recovering the sum from the former employee.

With that in mind, it is likely that schools will be prudent and will think twice about PILON payments, only offering the gross amount of the PILON (that is, without the deduction of tax) in exceptional circumstances. While the tax treatment of non-contractual PILONs is still, at present, open for debate, we expect the position to be a lot clearer in the new financial year.