Employee issues and insight

Teacher Misconduct – Prohibition of Teachers Advice

On 25 August 2021, the Department for Education (DfE) published an open consultation seeking views on proposed revisions to the current version of Teacher misconduct: the prohibition of teachers.

The proposed revisions are intended to provide clarification on the factors relating to decisions leading to the prohibition of teachers from the teaching profession.

Is it a reasonable adjustment to protect pay permanently when disability means that a teacher can no longer teach?

This question was considered by the Employment Appeal Tribunal in the recent case of Aleem v E-Act Academy, a case involving a science teacher who could not continue in her teaching role due to her mental ill health but could work as a cover supervisor (which attracted a lower rate of pay).

The trust continued to pay her at her teacher's rate of pay temporarily while she tried the cover supervisor role for a three-month probation period, and then until her internal grievance had run its course. Occupational Health then indicated that she remained long-term unfit to return to her teaching role but could carry out the supervisor role. She accepted an offer to continue in the supervisor role at the applicable lower rate of pay but brought a failure to make reasonable adjustments claim.

The EAT found that it was a reasonable adjustment to maintain the higher rate of pay during the probation and return to work processes in order to support her return to work, but these considerations subsequently ceased to apply.

While the case is helpful for employers and demonstrates that salary may not need to be protected indefinitely where an employee moves into a different role attracting lower pay all relevant factors must be taken into account. In Ms Aleem's case, there was a clear point at which a line could be drawn (completion of the probation period and return to work process, as well as exhaustion of the internal grievance process) and the employer, which was publicly funded, was facing financial pressures.

Dismissal of teacher suspected of possession of indecent images of children but not prosecuted was fair 

In L v K, a teacher, was charged but not subsequently prosecuted with possession of indecent images of children. The images were downloaded onto his home computer to which his son, who was also charged, had access.

Following a disciplinary hearing the employer decided there was not enough evidence to conclude that the claimant had downloaded the images. However, the employer could not be certain that the claimant was not responsible and that presented an unacceptable risk to children should he remain in employment. The employer also found there was a serious reputational risk should they continue to employ the claimant. He was dismissed from his post. He claimed unfair dismissal.

The employment tribunal held that there was some other substantial reason (“SOSR”) for the dismissal, that it was fair and that, it fell within the band of reasonable responses. However, the Employment Appeal Tribunal (EAT) took the view that, as the letter inviting the claimant to the disciplinary hearing was based on misconduct and gave no notice of reputational damage as a potential ground of dismissal, and the panel did not have a reasonable belief in the guilt of the claimant, it was unfair.

The Court of Session unanimously allowed the appeal. The employer had concluded it could not maintain the necessary trust and confidence in the claimant due to the possibility that he had downloaded the images. They were not prepared to take the risk of continuing to employ the claimant bearing in mind the duty to protect the children. The reputational risk was ancillary to the child protection issue. In the circumstances, the employer acted reasonably  even though that carried the risk of injustice to the claimant.

This case highlights the importance of the test of reasonableness, of the wording contained in a letter inviting an employee to a disciplinary hearing and the subsequent reasons relied on for dismissal when the test of reasonableness is being applied. It is not straightforward to dismiss an employee to safeguard an employer’s reputation but here reputational risk was ancillary to the employer’s primary reason for dismissal, being its statutory duty to protect the children in its care in a situation where trust and confidence in the teacher had been lost due to the real possibility that he was an offender.

Gender Pay Gap Reporting

As a reminder, in light of the continuing effects of the COVID-19 pandemic, the Equality and Human Rights Commission (EHRC) confirmed earlier this year that gender pay gap enforcement action for the reporting year 2020-21 would be suspended until 5 October 2021. Under the Equality Act 2010 (Specific Duties) Regulations 2011 (SI 2011/2260) and the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI 2017/172), public sector bodies would have been required to submit their gender pay gap reports by 30 March. The suspension of enforcement action effectively means that employers have had an additional six months to meet their reporting obligations for 2020-21.

Immigration

The end date for temporary COVID-adjusted right to work checks has again been deferred, this time to 5 April 2022.  For any employees commencing work up to and including 5 April 2022:

• right to work checks can continue to be carried out over video calls;
• job applicants and existing workers can continue to send scanned documents or a photograph of documents for checks using emails or a mobile app, rather than sending originals; or
• employers can use the Home Office Employer Checking Service where applicable, if the employee cannot provide any of the accepted documents.

Where a prospective employee (and a national of the EU, EEA, Switzerland or the rest of the world) provides you with a share code and their date of birth, employers can still check their right to work in the UK, online.

The Home Office have also announced their intention to roll our specialist technology to enable digital right to work checks, in the future.

Provided right to work checks are done in line with guidance, there will be no need to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 5 April 2022, and employers will maintain a statutory defence against a civil penalty.

The government have also published a UK points-based immigration system: sponsorship roadmap summarising their intention to continue to modernise and streamline the sponsorship system for employers, following changes implemented in 2021, with the aim  of making it easier and faster for employers to employ migrant workers and attract the best talent for their roles.

For help or advice on any of the above topics please contact our Education Team.