Academy terminating prior arrangement

April 16th, 2015 by James Goudie QC

In Anderson v Chesterfield High School UKEAT/0206/14/MC, Mr Anderson is currently the elected Mayor of Liverpool.  This is an executive post and regarded as full-time.  The position carries with it an annual allowance of almost £80,000.  He had previously held positions as Councillor of Liverpool City Council, the Leader of the opposition on the Council and ultimately at the time of his election as Mayor, Leader of the Council, which was in effect a full-time post with an annual allowance of approximately £50,000.

Prior to his election as Mayor, he was employed by a neighbouring Local Authority, Sefton Metropolitan Borough Council (“Sefton”) at Chesterfield High School. Once elected Leader of Liverpool City Council he had ceased to work at the School.

Sefton agreed that he should continue as an employee. This was on the basis that he would be paid the maximum allowed as paid leave to enable employees to hold public office by Section 10 of the Local Government and Housing Act 1989 (208 hours per annum).  His post was held open.   Sefton also continued to pay pension contributions.

This arrangement continued until the School became an Academy.  His employment then transferred by a TUPE transfer to the Respondent, now independent of Sefton.

The Respondent was concerned that the arrangement was “inequitable”,  principally because the Respondent was paying some £4,500 per annum to the Claimant but the pupils at the school received no benefit.  The Respondent accordingly terminated the agreement.  The Claimant claimed, inter alia that he had been dismissed unfairly.

The ET found that he had remained an employee and had been dismissed for “some other substantial reason”, a potentially fair reason.  However, the dismissal procedure was unfair, and his claim for unfair dismissal was upheld.  He was entitled only to a basic award subject to a Polkey deduction and contributory fault.

Mr Anderson appealed.  The EAT on 14 April 2015 upheld the decision of the ET on the basis that the deductions were justified on the facts found by the ET and that the Respondent had acted reasonably in taking the view that a continuation of an arrangement whereby Mr Anderson was paid (albeit a modest amount) by a publicly funded school, without having to provide any services, for an indefinite period was of no value to the Respondent and might lead to significant criticism.  It was entitled reasonably to regard the arrangement as inequitable and unsustainable and to terminate Mr Anderson’s  employment.

His Honour Judge Serota QC said:-

“13.      No concern appears to have been given as to what the public perception might be of the expenditure of public money to a full-time politician who was not expected or required to provide any services in return.”

“57.      In my opinion the principal reason for the “dismissal” was obvious. The realisation that a continuation of an arrangement whereby the Claimant, an elected official of a neighbouring Local Authority, was paid (albeit a modest amount) by a publicly funded school without having to provide any services for an indefinite period was considered to be of no value to the Respondent and might lead to significant criticism if the arrangement became public.  The Respondent was reasonably entitled to regard the arrangement as inequitable and unsustainable.  It was also the case that the Respondent considered that the arrangement (including the indefinite holding open of the Claimant’s post) led to some instability within the school.

58.       The Employment Tribunal’s conclusions on the Polkey deduction and deduction for contribution were conclusions to which it was entitled to come.  Its conclusion that the Claimant was party to a misuse of public funds was certainly within the range of reasonable responses of a reasonable employer.  Further, the Claimant’s conduct can reasonably be regarded as culpable or blameworthy.  The finding that the Claimant would have been dismissed in any event had a “fair” dismissal procedure been followed is unassailable as a finding of fact that the Employment Tribunal was entitled to make.  I am unable to see how consultation would have made any difference.  …

59.      It seems to me as though the Claimant has simply not given sufficient attention as to how the arrangement he made with Sefton and so continued with the Respondent might look to outsiders.  The Claimant was entitled to receive almost £80,000 per annum from Liverpool for his role as elected Mayor, yet also procured a payment (albeit modest) from public funds for which he provided, and was not expected to provide, any service.  It was, more likely, considered to be a reverse form for a zero hours contract, whereby the Respondent was bound to make payment of salary but the Claimant was not bound to provide any services.  It is certainly fairly arguable that this arrangement may strike members of the public as constituting a misapplication of public monies. …

60.      What most people would consider the Respondent’s desire to extricate itself from this arrangement, which could have been a public relations disaster for the school, would seem to me to be a clear example of SOSR for ending the employment relationship with the Claimant.  I am satisfied that this is the conclusion to which the Employment Tribunal came and to which it was clearly entitled to come.  In the circumstances, the appeal is dismissed.”

 

Local offers

February 6th, 2015 by James Goudie QC

Section 30 in Part 3 of the Children and Families Act 2014 defines and prescribes the content of a “Local Offer”.  A local authority in England must publish information about the education and training, social care and health provision, for children and young people who have special educational needs or a disability, that it expects to be available in its area (or in some circumstances outside), whether or not it will be making that provision itself.  Schedule 2 to the Special Educational Needs and Disability Regulations 2014, SI 2014/1530, specify what information must be included in the Local Offer.  Mostyn J has considered these provisions in R (L & P) v Warwickshire County Council (2015) EWHC 203 (Admin).  He observed, at para 48, that Schedule 2 provides for a “very extensive range of information” to be published in the Local Offer, and referred to the “vast number” of people and bodies each local authority must consult before publishing its Local Offer and to the “huge range of information that must be referenced”.

Having referred to the statutory guidance, Mostyn J stated:

“51.       Although the prescriptions are extremely extensive it is important to understand that the requirement is no more than to publish information about what services are expected to be available.  Section 30 of the 2014 Act incorporates a publication obligation, no more, no less.”

At para 54, he said:

“…it must be very clearly understood what the purpose of the consultation is. It is about what appears in the Local Offer, which is a compendium of information. I remind myself of the words of section 30. The local authority has a duty to publish information about certain provision it expects to be available.”

At para 57, Mostyn J reiterated that the statutory consultation is about what the Local Offer should say about services to be provided, not about what services should be provided.  He dismissed the challenge to the fairness of the consultation.  He emphasized (para 59) that the Local Offer by its nature will always be subject to continuous updating; and, at para 77, approved the following submissions on behalf of the County Council:

(i) The development and publication of the Local Offer is, as the legislative framework envisages and the implementation guidance makes clear, intended to be an iterative process, subject to consultation and to be done in accordance with the new spirit of “co-production”. To update the website with further information on the Local Offer and to continue to do so as the Offer is refined and further developed is entirely lawful.

(ii) It is obviously not arguably unlawful for information to be published on the Council’s website by way of a link through to a partner’s website, for example with respect to the information on healthcare provision and SEN provision in schools.

James Goudie QC

 

School Admissions Code

November 4th, 2014 by James Goudie QC

The School Admissions Code 2014 revises and replaces the existing School Admissions Code 2012.  The School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) (Amendment) Regulations 2014, SI 2014/2886, pursuant to s84(1) of SSFA 1998 (“the Regulations”) amend the School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) Regulations 2012 to give effect to certain provisions of the revised Code.

The majority of changes come into force immediately.  The amendments to the admissions timetable will be phased in from September 2015.

The Code introduces specific, limited changes to the 2012 Code.  The two main changes allow all state-funded schools to give priority in their admission arrangements to children eligible for pupil premium or service premium funding; and admission authorities of primary schools to give priority in their admission arrangements to children eligible for the early years pupil premium, pupil premium or service premium who attend a nursery which is established and run by the school.

There will be no requirement for admission authorities to include these priorities in their admission arrangements, but they would have the freedom to do so if they wished.  Any admission authority wishing to change its arrangements to introduce such a priority would be required to consult parents and others.

There are also minor changes to amend the timetable by which admission arrangements must be consulted upon, determined and published by admission authorities, and for resolving disputes regarding the lawfulness of admission arrangements through objections to the Independent Schools Adjudicator; and to clarify the provisions relating to the admission of summer born children who wish to delay entry into reception.

Guidance is promised (or threatened) on how admission authorities might implement in practice some of the optional changes.

James Goudie QC

 

Education in Wales

October 28th, 2014 by James Goudie QC

The Education (School Development Plans) (Wales) Regulations 2014, SI 2014/2677 (W.265) apply to Governing Bodies of maintained schools. They impose a duty on the Governing Body to draw up a School Development Plan in order to assist it to exercise its responsibility for conducting a maintained school with a view to promoting high standards of educational achievement.  That duty does not affect the general principles and respective roles and responsibilities of governing bodies and head teachers set out in the School Government (Terms of Reference) (Wales) Regulations. The content of the plan is set out in the Schedule.

The School Development Plan has effect for a three year period. The Governing Body must revise it annually and following an inspection by Her Majesty’s Inspectorate for Education and Training in Wales.

Provision is made in relation to publication. In drawing up the School Development Plan the Governing Body must have regard to school performance information. The Governing Body must consult with those persons prescribed.

The Education (Pupil Referral Units) (Management Committees etc) (Wales) Regulations 2014, SI 2014/2709 (W.270) require local authorities to establish Management Committees (“MCs”) to run Pupil Referral Units (“PRUs”) in their area, and make provision for the constitution and procedure of MCs.  A MC may run more than one PRU.  Local authorities must delegate certain functions, principally the function of conducting the PRU, to the MC.  Written Statements of Policy in relation to the Curriculum of the PRU must be made, and periodically reviewed.

 

Enforced Academisation

July 14th, 2014 by James Goudie QC

A judicial review challenge to an enforced academisation has failed in R (Governing Body of the Warren Comphrehensive School) v Secretary of State for Education [2014] EWHC 2252 (Admin).  The case concerns the Warren Comprehensive School (“the Warren”), a mainstream school maintained by the London Borough of Barking and Dagenham.  The Warren had been placed into “special measures” by OFSTED in February 2013.  On 6 January 2014 the SoS made two decisions with respect to the Warren.  One was to make an Academy Order, pursuant to the Academies Act 2010.  The other was to appoint an Interim Executive Board (“IEB”), pursuant to the Education and Inspections Act 2006.  The following day the Claimants issued an application for permission to seek judicial review in respect of both decisions.  On 12 May 2014, following a consultation on academy conversion, the SoS decided that the Warren should (with effect from 1 September 2014) become an Academy, sponsored by Loxford Academy Trust.  The Claimants also sought to challenge that decision.

The eventual grounds of challenge were in two parts.  First, it was alleged that both the decision to convert the Warren to an Academy and the decision to appoint an IEB were flawed as being based on a material error of fact, namely that the statistical evidence shows that sponsored Academies are more likely to deliver attainment and improved progress in Schools in need of intervention than maintained Schools.  The second was that the decision to convert the Warren into an Academy was flawed as failing to have regard to the level of disruption that would be caused and being irrational.

The case based on material error of fact was not made out on the evidence: paragraph 74 of the Judgment of Supperstone J.

The case based on the allegation of failure by the SoS to have regard to possible disruption to staff and pupils if the Warren converted to Academy status also failed on the evidence: paragraph 78.  At paragraph 80 Supperstone J observed that the SoS appreciated that it was likely that there would be some disruption during the process of Academy conversion, but considered that Loxford would appropriately manage the process in order to mitigate any such disruption.

Supperstone J further ruled, at para 84, that the SoS was entitled to conclude that the persistent under-performance of the Warren meant that steps should be taken without further delay to bring about a long-term sustainable improvement.

11KBW’s Jonathan Swift QC and Joanne Clement appeared for the Secretary of State.

James Goudie QC

 

Fair deal

March 5th, 2014 by James Goudie QC

The Teachers’ Pensions (Amendment) Regulations 2014, SI 2014/424, amend the Teachers’ Pensions Regulations 2010, SI 2010/990, as previously amended, which govern the Teachers’ Pension Scheme (“the TPS”).  The 2014 amendments facilitate the implementation of the new Fair Deal – a non-statutory policy issued by HM Treasury in October 2013 (and provide for the third and final year of increased employee contribution rates, as recommended by Lord Hutton as part of his review into the affordability and sustainability of public sector pension schemes).   Amendments are made to existing arrangements to allow for access to the TPS for a new type of employee.  

Regulations 3 to 7 amend the 2010 Regulations so as to implement new Fair Deal.  Access to the TPS is expanded to allow a previously excluded type of employee (one who has been out-sourced from the public sector to an independent provider delivering public services) to retain their membership of the scheme.  Individual members continue to have access to the TPS while they remain employed on the out-sourced contract, and their access will continue following any subsequent compulsory transfers, so long as it is in respect of that same public service contract.

 

Staff restructuring and efficiency savings

February 7th, 2014 by James Goudie QC

In  Hazel and Huggins v Manchester College [2014] EWCA Civ 72 the Court of Appeal has dismissed the College’s appeal against a majority Employment Tribunal decision that the dismissals of two lecturers at HMP Elmley in Kent, Mrs Hazel and Mrs Huggins (“H&H”) were not for an “economic technical or organisational” (ETO) reason that entailed a change in the workforce, but were because they refused to agree to new, reduced terms, and this was connected to a TUPE transfer, making their dismissals automatically unfair.  Regulation 7 of TUPE provides that where, either before or after a “relevant transfer”, any employee (of the transferor or transferee employer) is dismissed, that employee shall be treated, for unfair dismissal purposes, as unfairly dismissed if the sole or principal reason for dismissal is the transfer itself  or “a reason connected with the transfer” that is not an ETO reason “entailing changes in the workforce”.

The College is a provider of further and higher education courses and vocational skills-based training. Among other things it provides offender learning in prisons. In 2009 it successfully bid for contracts to provide services in six regions of the Prison Service. In August 2009 it took over, under TUPE, the employment contracts of about 1,500 staff, including H&H,  in addition to about 2,000 already employed in offender learning and about 3,000 in the rest of the organisation.

A few months later the College’s Board agreed to a package of proposals set out in two reports from its Principal for what were described as “staff restructuring and efficiency savings” and “contract change for Offender Learning and other related staff’. The impetus for the proposals came from a number of factors. The general economic situation facing the further education sector was challenging.  There had also been changes in the funding allocation machinery.  Moreover, there were particular problems in Offender Learning.  Hidden costs had been encountered following the bid. In addition, employees in Offender Learning were on very disparate terms and conditions of employment, as a result of the College having built up this part of the business by absorbing a large number of different entities whose staff brought their previous terms with them.  Apparently they had to deal with no fewer than 37 sets of terms. Such a state of affairs was plainly very undesirable from the point of view both of effective management and of staff relations.  There was no doubt also a risk of equal pay claims. The total costs saving which it was planned to achieve from all aspects of the package was £5million.

Against this background, the package had a number of different elements.  These includedg redundancies and other restructuring of roles, efficiency savings, and the proposed standardisation of contractual terms, including a single pay-scale for all staff in Offender Learning. The number of potential redundancies notified to the DWP was 300. As regards the changes in terms and conditions, the plan was to ask staff to sign new contracts of employment.  If they did not agree they would be dismissed and offered re-engagement on the new terms.  The various elements in the package were in practice inter-related. The College made the point in the course of the process that the introduction of the standard terms and conditions which it was offering would produce costs savings which would reduce the number of redundancies required.

The process of implementation of the proposals was complex. It required much negotiation and consultation both with the University and College Union and with individual employees. H&H were initially warned that they were at risk of redundancy or a reduction in contractual hours, but in due course it became clear that they would retain their existing jobs. Both were sent letters explaining the new terms being offered and enclosing contracts for their signature. It was explained that they were at risk of dismissal if they did not sign. The proposed salaries were 18.5% less than the current level for Mrs Hazel and 13.2% less for Mrs Huggins, though there would be a one-year period of protected pay. That was not acceptable to either of them. There was a period of further consultation, during which they in due course confirmed that they would agree to all the proposed changes except those affecting pay. Eventually they were sent notices of dismissal, but before those took effect they accepted the new terms, albeit under protest and expressly “without prejudice”. On that basis they continued to work for the College, but they were paid only at the reduced level. They then brought their proceedings in the Employment Tribunal complaining that they had been unfairly dismissed.

Underhill LJ said (para 22) that in a case where Regulation 7 of TUPE, and, more particularly “the ETO defence” is in play, three questions (the last with two sub-questions) arise: (1) What is the reason, or principal reason for the employee’s dismissal? (2) Is that reason the TUPE transfer itself, in which case the dismissal will be automatically unfair, or a reason “connected with the transfer” or neither? (3) If it is “connected with the transfer”, (i) is the reason ETO and (ii) does it “entail changes in the workforce”?

As to the second question, it was common ground that the dismissals were connected with the TUPE transfer.  The Court concluded that the answer to the first question was that the reason for their dismissals was that H&H had refused to agree to the new pay terms, and that the answer to the third question followed (as will generally be the case) from the first, namely that the refusal to agree to new terms and conditions was not a reason which entailed changes in the workforce, applying the Court of Appeal decision in Berriman v Delabole Slate Ltd [1985] ICR 546.

The College had argued with respect to the first question that the reason for the dismissals was the entirety of the package of proposals agreed by the College’s Board and that the package incorporated proposed redundancies that did “entail changes in the workforce”.  The Court of Appeal accepted that the proposed harmonisation of terms was “in a general sense” related to the proposal for redundancies. They were adopted as part of the same package of proposals. Both were intended to contribute to the required costs savings.  The achievement of the standardisation of terms would reduce the number of redundancies needed.

However, said Underhill LJ (para 23) “the fact that there was a relationship of this kind has no bearing on the statutory question” of what was the reason for the dismissals.  It is trite law that what matters is the factors that operate on the employer’s mind as to cause him to dismiss the employees.  The College’s need for redundancies played no part in its reason for giving H&H notices of dismissal.  Their dismissals had nothing to do with the other elements of the package or the fact that some other employees had been, or were proposed to be, made redundant.  The Employment Tribunal had adopted the correct approach and had been entitled to find as a matter of fact that in the sequence of events the principal, indeed the only, reason why H&H were dismissed was that they had refused to agree to the new terms of pay.

James Goudie QC

 

Admission Appeals Arrangements (Wales)

October 29th, 2013 by James Goudie QC

The Education (Admission Appeals Arrangements) (Wales) (Amendment) Regulations 2013, SI 2013/2535 (W.250) apply to all admission appeals heard on or after 1 January 2014 in respect of decisions to admit (or not to admit) pupils to schools.  They make amendments to the Education (Admission Appeals Arrangements) (Wales) Regulations 2005 (“the 2005 Regulations”), SI 2005/1398 (W.112).   

Regulation 2 substitutes a new Regulation 6 in the 2005 Regulations.  The new Regulation provides that Appeal Panels may consider whether admission arrangements are unlawful because they do not comply with either the School Standards and Framework Act 1998 (“the 1998 Act”) , or the mandatory provisions of any School Admissions Code (issued under Section 84 of the 1998 Act).   

When a child is refused a place at school on the basis that to admit the child would breach the statutory limit on infant class size unless a relevant measure were taken to avoid that breach, Appeal Panels may uphold the appeal only on certain limited grounds.  The new Regulation 6 provides that an Appeal Panel may uphold such appeals if it is satisfied that either the child would have been offered a place if the relevant admission arrangements had been “properly implemented”, or if they had been lawful, or if the Appeal Panel is satisfied that the decision of the admission authority was unreasonable, in the sense that it was not one which a reasonable admissions authority would have made in the circumstances of the case. 

 

Education Provision and Planning Permission

February 8th, 2013 by James Goudie QC

A private educational institution operated from premises which it did not have planning permission to use for educational purposes.  The Home Secretary revoked its A-rated Sponsor Licence under the Immigration Points Based System.  In  R (School of Business and Commerce Limited) v SSHD [2013] EWHC 126 (Admin) the Court dismissed the institution’s judicial review challenge to the revocation of the Licence.  The UKBA was entitled to regard the unlawful use of premises as a very serious matter.  The Judge observed that Colleges like that provided by the School meet important public policy criteria. They are an important part of the UK’s role in the wider world, bringing in foreign funds by providing skills and training to students from many countries. On completion of their studies, students in most cases return to their country of origin to deploy those skills, often in developing countries where they will prove of great value. Some remain in the UK as significant parts of the workforce here. The reputation of higher education facilities in the UK is strong. It is an implicit assumption that all prospective and actual students can make that they enter a lawfully run institution working from premises in which they are entitled to operate. SSHD’s decision on the planning issue was reasonably within her discretion. 

 There was also an issue about information concerning the attendance record of the students.  The information provided was incorrect.  Enquiries revealed that the non-attendance rate was high.  The Judge observed that, in order to maintain trust and sound policy application, it is essential for colleges to provide the Defendant with full and accurate information when UKBA is assessing whether there has been compliance with sponsor duties. The decision to revoke the sponsor licence was reasonable as a result of the failures in that respect. The decision on that ground was certainly within the discretion of the SSHD.

 

Eligibility for Student Grant

September 11th, 2012 by James Goudie QC

In  R (Arogundade) v Secretary of State [2012] EWHC 2502 (Admin) Robin Purchas QC held that to establish eligibility for a grant, under the Education (Student Support) Regulations, an individual had to meet the three-year “ordinary residence” requirement, that required lawful residence, and would not include residence in breach of the Immigration Rules as an “ovestayer”, notwithstanding that there is no express requirement in the Regulations that “ordinary residence” must be lawful. 

The Deputy Judge said (para 57), applying the approach in R v Barnet LBC ex p Shah

[1983] 2 AC 309:

“It seems to me that the fundamental requirement for ordinary residence over the three year period is in substance the same to demonstrate an established connection with this country as a precondition to eligibility for student grant from public funds. … a person should not be able to rely on his own unlawful act to secure an advantage …”

At para 64 the Deputy Judge said:

“The contention that the Claimant may have been entitled to human rights protection during part or all of the relevant period is no answer to these public policy and related considerations. …”

The Deputy Judge concluded, at para 67:

“In conclusion I find nothing in the subsequent authorities or in the relevant regulations or subsequent legislative changes which would undermine or displace the approach clearly and authoritatively set out by Lord Scarman in his opinion in Shah. On the contrary in my judgment the overall structure and underlying policy and purpose of the 2009 Regulations reinforce that approach as being appropriate to the application of the Regulations.”