Category Archives: Support Staff

Casual and Zero Hours Staff – Restrictions on Contracts

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Do you insist that casual or zero hours contracted staff may not work for another employer?

Do you require such staff to obtain permission to work for another employer?

If so, you need to revise your contracts and arrangements as it is now illegal to require such staff to work exclusively for your organisation.

Other changes are also proposed to take sanctions against employers who try to flout the requirement against exclusivity clauses in such contracts. This could affect sessional music teachers, casual instructors and other zero hours contracted staff.

Zero hours contracts are not illegal but you need to understand the principles for such contracts and the practical issues. Read more by clicking on a link to an article (on our sister blog) – Casual/Zero Hours Staff – A Balanced Approach.

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Are your Contractual Terms your Master or Servant?

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The need to change the working hours of an individual often leads to disputes amongst both teaching and support staff e.g. changing the days of attendance or spreading the hours over more days. This is usually because the school has failed to become familiar with the terms and/or failed to ensure that its terms of employment provide expressly for this in a clear way. This was re-emphasized recently in a court case [1] and the notes below are a useful reminder of key points which schools need to consider in their circumstances. .

Unsuccessful Aims

The school wished to change the days on which an individual attended work so that the working hours were spread across 5 days rather than the current 3 days to ensure that particular core subjects could always be taught in the morning. Consultation took place but agreement was not reached. The school went ahead and relied upon a clause concerning the variation of hours.

The Court held that was ineffective for this purpose for several reasons including the lack of clarity in the contractual terms.

The school in this case was an independent school but there is a salutary warning for academies and maintained schools in the view of the author as explained below.

Familiarise Yourself with Your Terms

In presenting its case, the school did not appear to:

  • understand whether and how their terms addressed varying the hours or days of attendance of part-time staff;
  • what the related terms actually meant.

A lack of familiarity was a major contributor to the adverse decision of the judge.

This is a basic error which can be very expensive. I recall observing a case regarding a NHS employee in which the question of the suitability of alternative employment arose. At no time did the employer’s representative explain that the national agreement on redundancy defined as suitable a role up to 6 miles away. The case was lost on the distance/time to travel issue simply because the presenter was not familiar with the terms.

Clarify Your Terms

Both academies and independent schools have the power to write bespoke terms into employment contracts and thus ensure that hours can be varied including those of part-time staff. Have you recently read your terms and asked yourself, “do they reflect the needs of the school?”

Even though an academy or independent school may follow the School Teachers’ Pay and Conditions Document (STPCD), they can still amend those terms to address issues such as the variation of hours and/or days of attendance on a temporary or permanent basis.

Although maintained schools have to apply the STPCD, it is important to understand what restrictions are placed on the Head and the areas of freedom when discussing working hours [2]

Would you like a review of whether your terms about the varying of hours and/or attendance days could be improved? If so, write to the author via this link.

Breach of Terms an Effective Reason for Resignation

The determination of the school to press ahead with changes to the hours led to the employee resigning and claiming a breach of contract and thus constructive dismissal.

The school argued that there were several reasons for the resignation which were not connected with the change of hours proposed. However, the Judge decided, in line with previous Court decisions, that where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause.

Review the Effectiveness of your Terms

To avoid prolonged arguments and expensive tribunal claims, reconsider whether your terms of employment on working hours and days are clear and address the likely needs of the school.

Contact the author as noted above if you would like those aspects of your terms reviewed. As noted above you may be lucky and be offered a free review.

Sources

[1] Hart v St Mary’s School (Colchester) Ltd UKEAT/0305/14/DM

[2] You may also find the following article useful – Teachers’ Working Hours – Governors’ and Head’s Duties

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The Price Tag of Continuous Service

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You are sitting with colleagues about to offer a job to an interviewee.  The latter has been advised well as he asks you directly, ” I would like to be assured that you will recognise my previous continuous service in the offer for this role?”  The candidate is very experienced for the role and you are keen to seal the offer.  So you answer, “Yes, once it has been verified”.  What have you recognised and at what cost?

Statutory Continuous Service

Such service builds an individual’s entitlement to rights such as notice periods, eligibility to claim unfair dismissal, redundancy pay.  When you agree to recognise continuous service, you may inherit a long period of unbroken service which could, for example, result in up to 20 years of service being taken into account for redundancy pay.  Thus it pays to be aware of what costs you may inherit.

As it is a statutory principle, most employers have to recognise such service. However, some organisations go further and recognise a wider definition of previous service that will count for benefits etc.

Strict Reckoning of What Service Counts

Statutory continuous service is based on a strict principle. To be reckonable, service must be unbroken. A gap of just one week will break the service record. A week is measured from a Sunday but will count even if less than an hour of work was performed or if no work was performed in a week if the following applies:

  • A contract was in existence even if no work was carried out that week
  • The week by arrangement or custom is deemed to be a period of employment such as a term time worker who is not required to work during the school holidays or a woman on ordinary maternity leave.

Other situations can also arise leading to the recognition of continuous service if an individual is:

  • Incapable of carrying out his work due to sickness or injury for up to 26 weeks and is then re-employed – those weeks will be treated as continuous service.
  • Absent from work due to a temporary cessation of work even if the contract does not continue.

A Break in Service

If none of the above apply and an individual has a ‘gap’ of one week in his employment, he will be treated as having broken his statutory continuous service.

In most cases that means the service before the break will not be reckoned as statutory continuous service. However, there are some situations in which the service will not be broken but certain weeks will not be counted e.g. strikes – those weeks will not count but do not break continuous service.

In many cases, continuous service only with the current employer will count. For example, schools are not regarded as associated organisations and service with another school even within the same LA is not regarded as statutory continuous service but note the points below.

The Hidden Cost

[Author’s update] If the employer is the local authority, then any continuous service with that authority will count which will include working at other schools of the same authority whether in support and/or teaching roles.

An expensive mistake can be made if you contract to recognise service that is not continuous as you will be liable under the contract to recognise such service. Verbal or written offers of employment should make it clear that recognition of service is subject to verification of reckonable statutory continuous service and relevant previous service for particular rights and benefits.

Before answering the interviewee’s question, you should consider the real cost as you may inherit longer service because of an industry wide agreement. For example, if the interviewee has been working for a local authority type of employer, his service may count under what is known as the Modification Order.  The service must be continuous but may have been built up across several employers.  The last employer will inherit the liability for the whole continuous service of the individual

As individuals move between maintained schools and academies, you will need to have a policy on whether or not you will recognise their previous service.  Service with an academy counts for redundancy purposes but it does not have to be counted for some benefits.  In deciding your policy, you may need to take account of the thoughts below.

A Beneficial Price Tag

Some managers will be tempted to engineer a break in service to keep costs down or delay an individual accruing the right to claim unfair dismissal.  A more effective mindset is to consider the value of the experience and transferable skills that an individual will bring to the school.  Yes, that will have a price tag if things go wrong but as managers we have to nurture a culture that makes expectations explicit and provides a work environment for individuals to apply their skills to the benefit of the school as well as their own development and satisfaction from the exercise of their skills.

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Continuous Service or Discontinuous Service

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With the increasing movement of teachers and support staff between different categories of schools, some interesting conundrums are arising over whether previous service counts when an individual joins another school.

To help bring some light to this question, a few articles will be published shortly. These will cover movement between maintained schools and academies and vice versa and from one academy to another.

Keep an eye out for those articles but even better receive an alert when the articles appear on this site by clicking on the link at the top of the right hand column of this page. You will then be able to receive alerts by e-mail of new articles and updates.

© 2013 HR Management Dimensions

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