News and guidance

The government is convinced that the problems of employment are partly caused by the fear of employers, particularly small employers, that if they employ someone, they will never be able to get rid of them.

While this is not directly relevant to schools and colleges, a recent survey makes a few points that are not wholly unfamiliar in education. It found that some employers were not consciously aware of employment regulations and that some firms resisted set processes because they wished to run the firm ‘like a family’.

They saw dismissal as complex, potentially costly and weighted in favour of the employee and felt that judgments in employment tribunals were subjective. Some felt that expert advice was for large firms, not for them. Perhaps not surprisingly, however, employers that did have written policies and formal processes in place were more confident in dealing with employment matters.

The same does seem to be true of schools, in particular. And, of course, having a policy is no use unless you update it, know it and apply it. Whatever the temptations to do without HR advice and operate ‘like a family’, it is always worth remembering that many of the worst quarrels and more intractable disagreements take place inside families.

We are pleased to announce the results of the national elections to ASCL Council for 2013 to 2016. The following candidates were elected:

• Geoff Barton, Headteacher at King Edward VI School in Bury St Edmunds, Suffolk
• Jonathan Fawcett, Headteacher at Swanwick Hall School in Alfreton, Derbyshire
• Christine Ellis, Business Manager at St Antony’s Catholic College in Urmston, Greater Manchester
• Mark Jackson, Headteacher at Haslingden High School in Rossendale, Lancashire Arwel Jones, Headteacher at Brentside High School in Ealing, London
• Gill Bremner, Headteacher at Wilmslow High School in Wilmslow, Cheshire

Further information about ASCL Council including details of how you can get in touch with Council members is available online at www.ascl.org.uk/council_executive

The ASCL Benevolent Fund provides protection and care for all ASCL members, past and present, and their dependants. Whether it is a short-term financial crisis or a long-term problem, the fund stands ready to help.

The fund has helped many members and their families over the years including Mary. Mary was a successful assistant head in a school that had passed through a difficult patch, but whose latest Ofsted report had shown was making significant progress. Not enough, it seemed, because the local authority gave in to fairly intensive pressure to close it down to make way for a free school.

Mary, in common with the rest of the staff, assumed that, under Transfer of Undertakings (Protection of Employment) Regulations (TUPE) rules, she would be transferred to the new school. The free school, however, declined to re-employ her, leaving the local authority no alternative but to terminate her contract.

The local authority declined to pay for the redundancy, saying that her job was lost because the free school had refused to accept its legal obligation.

This was a classic case for an Employment Tribunal and ASCL’s field officer and legal staff were on the case. Meanwhile, however, Mary had no income, with no certainty as to how or when the dispute would be resolved, or when she would receive the redundancy payment to which she was undoubtedly entitled.

Fortunately, the ASCL Benevolent Fund was able to offer Mary an interest-free loan, which she undertook to repay as soon as the dispute had been resolved and her redundancy payment had been secured.

Mary was delighted. “Losing the job I loved was bad enough,” she said, “but the prospect of running into serious debt made it much worse. I am so grateful for the help which the benevolent fund was able to offer.”

The ASCL Benevolent Fund exists to support members who experience difficulties like this.

If you may benefit from the support of the benevolent fund, or know someone who may need support, or if you would like to make a contribution to the fund, please contact Carole Baldam, on 0116 299 1122 or email carole. baldam@ascl.org.uk

The ASCL Benevolent Fund is a registered charity, administered by independent trustees, all of whom are serving or retired members of the association. The fund has been built up over many years entirely by the voluntary donations of members

• For more information, see www.ascl.org.uk/benevolentfund

The ASCL Benevolent Fund provides protection and care for all ASCL members, past and present, and their dependants. Whether it is a short-term financial crisis or a long-term problem, the fund stands ready to help.

The fund has helped many members and their families over the years including Mary. Mary was a successful assistant head in a school that had passed through a difficult patch, but whose latest Ofsted report had shown was making significant progress. Not enough, it seemed, because the local authority gave in to fairly intensive pressure to close it down to make way for a free school.

Mary, in common with the rest of the staff, assumed that, under Transfer of Undertakings (Protection of Employment) Regulations (TUPE) rules, she would be transferred to the new school. The free school, however, declined to re-employ her, leaving the local authority no alternative but to terminate her contract.

The local authority declined to pay for the redundancy, saying that her job was lost because the free school had refused to accept its legal obligation.

This was a classic case for an Employment Tribunal and ASCL’s field officer and legal staff were on the case. Meanwhile, however, Mary had no income, with no certainty as to how or when the dispute would be resolved, or when she would receive the redundancy payment to which she was undoubtedly entitled.

Fortunately, the ASCL Benevolent Fund was able to offer Mary an interest-free loan, which she undertook to repay as soon as the dispute had been resolved and her redundancy payment had been secured.

Mary was delighted. “Losing the job I loved was bad enough,” she said, “but the prospect of running into serious debt made it much worse. I am so grateful for the help which the benevolent fund was able to offer.”

The ASCL Benevolent Fund exists to support members who experience difficulties like this.

If you may benefit from the support of the benevolent fund, or know someone who may need support, or if you would like to make a contribution to the fund, please contact Carole Baldam, on 0116 299 1122 or email carole.baldam@ascl.org.uk

The ASCL Benevolent Fund is a registered charity, administered by independent trustees, all of whom are serving or retired members of the association. The fund has been built up over many years entirely by the voluntary donations of members.

For more information, see www.ascl.org.uk/benevolentfund

The latest ASCL/SecEd Guide to… supplement is now out. This issue looks at using data for school improvement. Key content includes:

• a focus on the three core strands of school data collection and how to triangulate this information to improve standards
• advice on involving all staff in the intelligent use of data to improve pupil performance
• what to look out for when disseminating data to the wider teaching team
• data and Ofsted – what inspectors want to see
• a case study on keeping data use simple

You can see the guide online at www.ascl.org.uk/ascl_seced_guide_to

President Mike Griffiths talks about the ASCL Annual Conference and how it was a highly positive experience.

From the fantastic Northampton School for Boys (NSB) Jazz Big Band opening the conference, to the great range of keynote speakers, this was a conference big on ‘positivity’ – the espoused theme for my presidential year!

The two days seamlessly moved from one highlight to another, and I am hugely grateful to our guest speakers, presenters and session chairs. Delegates responded positively, and for many it is the ‘professional development’ experience of the year – every year!

The secretary of state agreed to be lightly grilled by Gerard Kelly, and the session was a mixture of light-hearted banter and incisive challenging questioning from Gerard and the floor. Michael Gove was, as ever, robust and eloquent, but gave no quarter on the government’s apparent insistence, despite urgings from almost everyone else, that AS and A levels are to be de-coupled.

Stephen Twigg, Michael Gove’s shadow, called for politicians to step back and let the professionals lead on educational matters. Let us hope that if given the chance, he sees this through!

John Cridland gave the Confederation of British Industry (CBI) perspective. Delegates were impressed by his passion and desire to work with ASCL and the education sector to improve the life chances of young people and the prosperity of the nation.

An interesting debate on the curriculum demonstrated John Cridland’s continuing enthusiasm, as well as warmth from delegates towards his proposals some years ago for the 14-19 curriculum. Perhaps their time will come?

Sir Michael Wilshaw urged school leaders to join Ofsted inspection teams, and help them get consistent judgements. And Melissa Benn produced a tour de force with her engaging critique of state education over the last 40 years and with her passionate call for locally accountable, truly comprehensive, schools for all.

Brian’s inspirational speech called for governments to listen and not rely on what ‘they think’ may work, but to base decisions on evidence. He asked for a second ‘Great Debate’ that would involve all stakeholders. We need consensus about direction, and need then to be left to get on with it!

My own speech was a personal reflection. I emphasised the importance of leaders being the most positive and optimistic people in their schools and colleges. Strategies were suggested, the most heartfelt being the importance of the ‘co-curriculum’ and a call to not waste the ‘Olympic Legacy’. Finally, Anthony Nolan. Keith Sudbury from R&Be (Register & Be a Lifesaver – see ‘Focus on’ on page 27) told of his son Adrian’s losing battle with cancer, but determination to make a difference. The organisation visits schools and colleges and encourages students aged 16 or over to register.

Nick Easton and George Attwell – NSB boys who acted as ‘hosts’ throughout the conference – introduced Matt Herbert, a boy at ‘our school’ who was ‘matched’, had a bone marrow transplant, and is now a peer of theirs in our sixth form. The video also featured Matt Smith from Dr Who – an old student of the school who urged all present to support Anthony Nolan.

If the conference achieved nothing else, to have inspired more than 100 schools to have ‘signed up’ will be some legacy! If you weren’t there, then, first, sign up with R&Be and, second, sign up for conference next year!

Challenging schools

Media headlines from ASCL’s Annual Conference in mid-March including the warning that good school leaders are being forced out of their jobs in challenging schools because of unrealistic expectations for improving standards in a short space of time. The warning came in General Secretary Brian Lightman’s speech and was picked up by The Independent, The Observer, and BBC Online.

Brian said: “Undermining and demotivating a whole tranche of aspirant and serving leaders will do nothing to raise standards in our schools and colleges.”

Rethink A level reform

Brian Lightman appeared on Sky News on 15 March to explain why ASCL was urging the DfE to rethink its plans to reform A levels, especially the decoupling of AS and A2. The interview followed an open letter from ASCL, HMC and AoC which appeared in The Times the same day.

School Data Dashboard

ASCL’s views were quoted on BBC radio stations across the country following comments from Ofsted chief Sir Michael Wilshaw about governance and the launch of the School Data Dashboard. The Guardian and BBC Online also picked up the story.

Brian said: “It is absolutely right that governors and parents should hold schools to account, and access to data is a part of this. However, all data, especially ‘simple’ statistics, comes with a heal

A recent case (R (On the Application of Austin) v The Teaching Agency) makes the point that the courts will act over injustice done to employees but they are very reluctant to over-rule professional judgement.

An agency supply teacher, Mr Austin, was given a two-year suspension when he visited two schools that had each asked the agency he was registered with not to send him to their school again. His behaviour at the schools was described as threatening, and the General Teaching Council (GTC) found that he had no insight into his behaviour. When he was given a two year suspension order, he then took the case to court.

The court refused to intervene. There had been nothing unjust in the proceedings so the case failed on that score. The alternative argument – the disproportionate impact on Mr Austin – was a consideration but the court was clear that professional bodies have a right to impose sanctions in order to maintain the standing of the profession. The courts would be slow to interfere with that judgement, and the impact on the individual in that situation was a secondary consideration in such cases.

While the General Teaching Council for England (GTCE) and the General Teaching Council (GTC) no longer exist, the Teaching Agency has picked up where they left off, and the same principles will apply. It is worth remembering that the much more drastic penalty of a prohibition order is the only sanction imposed by the Teaching Agency.

There has been considerable litigation over recent years over the question of time limitations on civil actions for damage. The general principle (section 33 of the Limitation Act) is that while the person injured should take action within three years of knowledge of the injury, a judge may exercise discretion to consider the case outside of this limit.

This means that schools or colleges, for instance, face questions as to how long they should hold on to relevant documents in case a late action is brought against them, an educational problem such as a learning difficulty, or failure to prevent abuse. The Appeal Court has being trying to put this genie back in its bottle, or at least give greater certainty.

Essentially, it will be a matter of deciding two things: Should the complainant have known (or did the complainant know) about the injury inside of the three years? If so, the case fails. Or, if s/he didn’t, does the unfairness to the injured individual in not hearing the case outweigh the unfairness to the person or organisation against whom the case is brought because it is brought so late?

In a case brought by someone who had been a gardener on an estate, the court looked at the difficulty of the case. Of three relevant witnesses, two were dead and one was aged over 90. Moreover, the relevant insurance documents were lost and the 90 year-old, who was the defendant, would be personally liable for a significant part of the claim. In these circumstances, the claim was barred.

This was a private case, against a ‘domestic’ employer. A school or college should not necessarily expect the same indulgence. It is important to ensure that relevant documents are kept for long enough – bearing in mind that courts have accepted a view that the consequences of a failure to diagnose a learning difficulty or of abuse may only be apparent many years after the event.

When a claimant alleges unfair dismissal aggravated by disability, harassment, victimisation and being penalised for whistleblowing, an employer knows that it is in for a rough time. This is particularly so when the costs in a case have escalated to a level totally out of proportion to the claim. However, it can get worse when the claimant produces 39 hours of recordings of meetings.

Not surprisingly, the employer in the case in question (Vaughan v London Borough of Lewisham and Others (2013) UKEAT) applied to have the recordings ruled inadmissible. However, the Employment Appeal Tribunal,with evident reluctance, has ruled that they could be used as evidence. “It is to put it no higher, very distasteful but employees such as the claimant will no doubt say that it is a necessary step in order to expose injustice… it is not inadmissible simply because the way in which they (the recordings) were taken may be regarded as discreditable.”

This judgment echoes other judgments on clandestine recording, for example, of exclusion reviews. This does not mean that the recordings will necessarily be seen by a tribunal or court as conclusive evidence. But in these days of small, multiple-function, electronic devices, it is as well to be aware that things have moved on.

The Charity Commission has raised doubts about the charitable status of several Scottish independent schools. The test of public benefit is one that is decided on the facts of the individual case, but it clearly is a matter of doing as much, rather than as little, as possible if the test is to be met.

The challenges to free schools take interesting routes. When the London Borough of Barnet handed over a piece of land previously used as a garden centre to a Jewish free school the challenge was made under the Equality Act 2010 on the grounds that the garden centre had been used for meetings and outings by disabled people and the borough had failed to have due regard to their needs. The judge in the case pointed out that ‘having due regard’ did not mean the same as ‘giving absolute priority to’ and the challenge failed. The distinction the judge made will also apply in other areas where the equality duty applies and members may want to note that.

It is worth noting that the same issue of ‘regard to’ was also at issue in the much-publicised Downhills Primary School case in the summer. Parents contended that the provision that “education should be in accordance with the wishes of parents” means that the secretary of state should listen to their objections to the academisation of the school.

The court again pointed out that ‘having regard to’ did not mean doing whatever parents wanted. The judge in that case also rejected a wider argument that there was a public duty to consult. The governing body should consult with those it saw fit to and that did not necessarily mean accepting the views of a parent action group. Consultation, to be invalid, had to be “so unfair as to be unlawful” and the consultation that had taken place was clearly not so.

Similarly, the secretary of state’s decision was not irrational. The judge said, “The secretary of state had a rational basis for his decision. In my view it is not arguable given the circumstances of this case that the secretary of state was not entitled to reach the decision that he did.”

It is perhaps a relief to know that the organisers of a fireworks display that was believed to have partly caused a series of traffic accidents on a motorway have not been charged with manslaughter. Criminally negligent manslaughter does demand that a duty of care should exist and that there has been a degree of recklessness or carelessness in the performance or non-performance of that duty.

While this clearly applies on a school or college site, it has not yet been tested whether by deciding to patrol an area around a school, the school may put itself in danger of manslaughter if the patrol is carelessly carried out and, as a result, a pupil dies.

In the way of things, there will be a case at some point that will clarify the law.