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Unfair
dismissal
Emergency leave
Arbitration
Part-time employees
Parental leave
Maternity
Leave
Frequently
asked questions
The
last two years have witnessed a quiet revolution in employment relations
as new laws designed to strengthen employee rights have come into force.
Unfair
dismissal
The measure that will perhaps have the greatest impact on schools is the
reduction in the qualifying period for unfair dismissal, from two years to
one.
This
came into effect in June 1999 and is likely to lead to a drop in the
number of teachers employed on temporary, one-year contracts.
In
law, a failure to renew a temporary contract usually counts as a
dismissal. So, unless a school has a genuine reason for employing someone
- for just a year, for example, to cover a secondment - it may well have
to justify its actions to an employment tribunal. With the maximum amount
of compensation a tribunal can award for unfair dismissal now raised from
Pounds 12,000 to Pounds 50,000, losing a case can be an expensive business
for foundation schools and for local authorities, which pick up the tab
when teachers are unfairly sacked from community schools.
But
many headteachers and school governors in both types of school have yet to
adjust to the new reality, according to Maureen Cooper, a director of EPM
Ltd, the privatised education personnel service of Cambridgeshire County
Council.
She
says: "There is quite a culture in education of employing staff on a
one-year, temporary basis and, because there was no risk attached to that
in the past, it is going to take a while for people to understand that
they will now have to deal with non-renewal of fixed-term contracts in a
more considered way."
The
teacher unions are expecting some schools to try to get around the effects
of the shorter qualifying period for employment protection. "We are
waiting for a rush of cases where teachers have been put on contracts of
less than 12 months," says NASUWT assistant secretary Joe Boone.
But
if there is a rush of these cases, it won't last long. A European Union
directive, due to be incorporated into British law by July 10 2001, says
temporary workers should not be treated less favourably than permanent
workers, unless the different treatment can be justified on objective
grounds.
The
directive is expected to stop employers from deliberately using a
succession of fixed-term contracts to get around employment protection
legislation.
Top
Emergency
leave
Since last December, employees have had the right to take a reasonable
amount of time off work to deal with emergencies involving dependants. A
dependant is defined as the employee's child, husband, wife, parent or
someone who lives with the employee as part of the family. Someone who
relies on the employee for help - for example, an elderly neighbour - may
also count as a dependant. There is no set limit to how much emergency
leave employees can take or how many times they can be absent.
Not
surprisingly, there are worries that some employees may try to abuse this
leave entitlement.
"Our
advice to schools is that it's far too wide and ambiguous to be
workable," says Julie Davies, a member of the employment law team at
solicitors Veale Wasbrough. "We suggest that schools negotiate a
policy with their staff so that both employer and employee are clear as to
what is covered by this new entitlement.
"The
policy should state quite clearly that this is what the school feels would
constitute an emergency, and any abuse of it would be a disciplinary
matter."
Veale
Wasbrough has produced a guide for schools to the new leave entitlements.
As well as outlining the provisions for maternity, parental and emergency
leave, and explaining how they affect schools, the guide includes model
policies and question-and-answer sections to help schools deal with
queries from staff (click here for details jump to end).
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Arbitration
Unfair
dismissals accounted for 44 per cent of all cases heard by employment
tribunals last year. This proportion could fall when a new arbitration
scheme, now out for consultation, comes into operation later this year.
Drawn
up by the Advisory, Conciliation and Arbitration Service (ACAS) under
powers granted by the Employment Rights (Disputes Resolution) Act 1998,
the proposed scheme will apply only to unfair dismissal cases, and will
provide an alternative to an employment tribunal hearing where both
parties agree.
Once
they have agreed, they will not be able to change their minds and go to a
tribunal. The arbitration will be in private, with the arbitrator able to
make the same awards as a tribunal. There will, however, be no right of
appeal to the Employment Appeals Tribunal.
"The
idea is that this will be a cheap and cheerful service where a third party
will adjudicate on unfair dismissal without the full panoply of further
investigative particulars, discovery and everything else that goes with
it," David Cockburn, a leading employment lawyer, told a recent ACAS
conference.
For
schools and local education authorities, the attraction of sorting out
claims quickly, cheaply and in private are obvious. But Jenni Watson,
national secretary of Redress, which frequently represents bullied or
sacked teachers, doubts if many will want to give up their right to a
public hearing.
"In
my experience, people usually go to employment tribunals, not for the
money but to have somebody publicly recognise that they have been
wronged," she says.
"In
most cases, they have been wronged publicly and, therefore, the
recognition of that has to be public too."
Top
Part-time
employees
New regulations based on the EU part-time workers' directive come into
force on April 7 2000. Intended to ensure that part-timers are not treated
less favourably than full-timers in comparable jobs, the regulations say
that part-timers are entitled to the same conditions of employment and
hourly rates of pay as full-timers, unless there are objective reasons for
treating them differently.
Schools
will need to clarify part-time teachers' working hours if they are to
avoid employment tribunal claims from part-timers who receive no payment
for attending meetings or doing other work outside their usual teaching
hours.
Working
time regulations
The
working time regulations, which pre-date the Employment Relations Act, set
a limit of 48 hours on the average working week, unless employees agree to
work longer.
This
average is worked out over a 17-week period. Although teachers often work
long hours, their average week usually comes to less than 48 hours because
of school holidays interrupting the 17 weeks.
The
regulations also give workers a right to a rest period of at least 11
consecutive hours in any 24-hour period. This could be an issue for
schools that require teachers to come in early in the morning after
attending a parents' meeting or other evening function that does not end
until late.
Top
Parental
leave
Measures
designed to help people balance the demands of work and family life formed
a key plank of the Fairness at Work proposals. Many schools already have
"family friendly" working practices, including time off for
staff needing to look after children and other dependants, but some
schools could come into conflict with staff over the new parental-leave
entitlement.
This
gives parents the right to take 13 weeks' unpaid leave over a five-year
period to look after each child born after December 15 1999.
Both
men and women who have been with the same employer for at least a year are
entitled to parental leave, which has to be taken in the first five years
of a child's life or within five years of a child being adopted. Parents
of a child with a disability can take 13 weeks' leave at any time until
the child reaches the age of 18.
The
regulations allow employers and employees to agree their own parental
leave scheme, provided it includes these basic rights. If no scheme is
agreed, the fallback position included in the regulations automatically
applies - and it is this that is causing controversy.
Under
the fallback scheme, employees must give 21 days' notice of their
intention to take parental leave, and can have no more than four weeks off
in any one year. This has to be taken in blocks of one or more weeks. New
fathers can take time off immediately after their child is born or
adopted. But employers can postpone the absence of other employees for up
to six months if it is likely to be "unduly disruptive".
The
fallback scheme specifically refers to education as an area where
employers might need to postpone parental leave. This seems to mean that
schools will be able to tell teachers to take unpaid parental leave during
the school holidays when they would normally be paid. Since teachers are
obviously highly unlikely to apply for leave on these terms, the teacher
unions are calling for a reduction in the six month deferment period.
The
National Employers' Organisation for School Teachers is about to launch a
review of the national collective agreement covering teachers' employment
conditions, including parental leave, and will not be discussing possible
changes with the unions until this is completed.
"We
have advised LEAs of the forthcoming review and we are trying to
discourage them from making local level decisions," says Mike Walker,
the organisation's assistant director.
Top
Parental
leave (2)
Parental leave, a part of the Fairness at Work legislation, offers unpaid
leave to parents of children born or adopted on or after December 15.
Parents
can take a total of 13 weeks of unpaid leave spread over five years with a
limit of four weeks in any one year. Guardians and step-parents qualify
for the leave and, despite its unpaid status, it will be taken up - at
least by some.
"Estimates
are that 2 per cent of men and 30 per cent of women will want to take
advantage of parental leave," said Owen Warnock from Eversheds,
employment law specialists. But teachers are faced with a Catch-22 which
will effectively deny many the opportunity of taking up the offer.
"There's a big area of doubt as to how this will apply to
teachers," he says.
The
problem is with the employers' right to defer the absence. If parental
leave is expected to be "unduly disruptive" to the organisation,
an employer has the right to postpone it by up to six months. It appears
that schools could ask teachers to take this leave during school holidays.
"We
don't think that these regulations are going to be of much use to
teachers," says Mary Howard, legal officer at the National
Association of Schoolmasters Union of Women Teachers, the second biggest
teachers' union.
The
loophole arises because the teachers' contract fails to define any holiday
time for teachers - it simply sets out when they have to be at school.
Teachers who insist on taking the deferred parental leave could find
themselves in the ridiculous situation of opting for unpaid leave during
their holidays. The exception is immediately after the birth or adoption
of a child, when there is no right to defer.
The
unions are working on a response to the anomaly.
"We've
identified three priorities," says Ms Howard. These are: to make some
of the leave paid, to reduce the deferment period and to seek to allow
teachers to take the whole 13-week entitlement as one block.
"That's
effectively a term," says Ms Howard. "It would be easier to
arrange supply."
But
employers are not going to be rushed into an early deal. "We haven't
really begun to firm up on how we can approach this," said a
spokesperson for the Local Government Association.
In
the absence of a national agreement, industrial tribunals could be left
with the task of testing the law.
Booklets
or leaflets are available on the Department
for Trade and Industry free from employment service job centres, or
from the DTI Orderline (Tel: 0870 1502 500).or from ACAS
Top
Maternity
Leave allowances
Expectant
mothers must book time off in advance.
Ordinary
maternity leave is 18 weeks.service
with their employer by the time they want to take the leave.
Mothers
now need only one year's service to qualify.
Additional
maternity leave can now be up to 29 weeks from the actual date of birth.
Mothers
can take parental leave on top of the additional maternity leave, giving a
33-week break after having a baby.
Top
Frequently
asked questions
Who
can take parental leave?
Employees who give birth or adopt a child on or after December 15, 1999,
and who have completed one year's qualifying se
and
fathers can take parental leave.
How
long does the leave last?
In most cases, leave must be taken in blocks or multiples of one week; but
parents of disabled children can take leave in blocks or multiples of one
day. The school must be given 21 days' notice.
What
happens with twins?
Parental leave is for each child, so if twins are born each parent will
get 13 weeks leave for each child.
When
does parental leave have to be taken by?
Normally until the child is five, but in adoption cases for five years
after the child is first placed with the family (or until the child's 18th
birthday). In the case of a child with a disability, until the child's
18th birthday.
Can
teachers return to the same job after parental leave?
Yes.
Do
employers need to keep records?
Employers are not required to keep records of parental leave taken,
although many will want to do so for their own purposes.
Can
employers ask for evidence that a teacher is entitled to leave?
Yes.
What
if an employer refuses to allow an employee to take parental leave?
Employees will have the right to go to an employment tribunal if the
employer prevents or attempts to prevent them from taking parental leave
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