Independent Education

SpotlightEducation Law News Winter Term 2013

CONTENTS

1 Employment Matters

2 Protected Conversations

2-3 Health and Safety Update

4 Rent Reviews in school leases

4-5 News in brief

Age Discrimination: Retirement Conversations are AcceptableAn Employment Tribunal dismissed claims of unfair dismissal and

age discrimination, despite age-related comments being made to

the claimant during her employment, including comments about

her retirement plans (Quick v Cornwall Council and another). The

age related comments were found to be reasonable in the context

of succession planning, and the management of that process, and

did not constitute age discrimination.

The judgment is helpful for employers as one of the practical

difficulties for employers following the abolition of the default

retirement age is how to approach the subject of retirement

with their older employees in a legitimate context without the

perception of any discrimination. ACAS have produced a guidance

document on working without the default retirement age which

outlines best practice. This can be viewed on the ACAS website:

www.acas.org.uk.

Is Obesity a Disability for Discrimination Purposes?A recent Employment Appeal Tribunal case has confirmed that

obesity is not in itself an impairment for disability discrimination

purposes. However, obesity may well make it more likely that an

employee has impairments within the meaning of the Equality

Act. In this particular case (Walker v Sita Information Networking

Computing Ltd) the individual had numerous physical and mental

conditions which caused him difficulty in his day to day life.

The EAT stated that the employer should concentrate on whether

the individual has a physical or mental impairment and it was

quite clear that this individual did have both.

For someone to be classed as having a “disability” the effect of the

impairment must be “substantial” – meaning more than minor

or trivial - and “long term” - ie. likely to last more than 12 months.

Consequently, if an obese individual is determined to lose weight

and the Tribunal could decide that the individual will reduce their

weight to normal levels within a year, this might mean that the

impairments were not long term for discrimination purposes.

The case confirms the general position that it is the impairment

that should be the main focus, not the medical condition itself.

For further information please contact

Nick Watson, Partner and Head of Employment,

on 01225 324435 or nw@stoneking.co.uk.

Caroline Banwell, Associate Solicitor, on

01223 451342 or cjb@stoneking.co.uk

Employment Matters

Schools are not “under a duty to safeguard children against harm under all circumstances”This was the conclusion of the Court of Appeal recently when it

overturned a County Court’s decision to award £3,215.16 damages

to a child who injured his thumb on a stainless steel drinking water

fountain when he lunged at and missed his brother in a water

fight. The facts are succinctly and helpfully set out by the Court

of Appeal in the judgment of West Sussex County Council v Lewis

Pierce [2013] EWCA Civ 1230 as follows:

“In the summer of 2010 [the claimant] was nine and a half years old

...[He] and his younger brother George, who was seven, were at the

school with their mother for an after school gardening club which

their mother helped to run. Whilst there the boys got into mischief.

They went over to the water fountain. George sprayed the claimant

with water from it and the

claimant then tried to punch

George, who by then, no doubt

prudently, was positioned

somewhere underneath

the water fountain. George

dodged the punch, the

claimant missed him , and

punched the underside of the

water fountain bowl instead,

sustaining a laceration to the

dorsal aspect of his right thumb and associated tendon damage.

The damage to the tendon was repaired shortly afterwards under

general anaesthetic. Happily, the claimant subsequently made a

full functional recovery. He was left with a hockey stick shaped scar

Health and Safety Update

Back in July last year, Nick Clegg and Vince Cable floated the idea

that employers should be able to be more open with members of

staff in the workplace. The Government wanted employers to be

able to have ‘protected conversations’ with their staff with the

aim that an employer would be able to discuss termination of

employment with an employee if things were not working out.

Under the Enterprise and Regulatory Reform Act 2013, protected

conversations will remain “off the record” and inadmissible in any

subsequent employment tribunal proceedings.

Schools should, however, take considerable care before having

“protected conversations” with members of staff as the scope of

the protection is somewhat limited as the protection only applies

to stand alone unfair dismissal claims (including constructive

unfair dismissal claims).

The protection does not apply to other types of claim, such as

breach of contract (wrongful dismissal), automatic unfair dismissal

and discrimination and protection will be removed in cases where

there has been “improper behaviour” such as harassment, bullying

and intimidation, victimisation or where undue pressure has been

placed on the other party e.g. by not giving reasonable time to

consider an offer.

Employers should act with caution when entering into any

pre-settlement conversations and weigh carefully any possible

advantages of having a protected conversation against the risk

of disclosure becoming admissible.

Protected Conversations

Above is the type of water fountain on which the boy injured his thumb.

‘The benefit of this is that schools will have greater flexibility in their choice of training provider as well as the ability to choose first aid training that is right for their school, and based on their individual needs.’

of about 2.7 cm on his thumb about which according to his own

medical evidence, he was completely unconcerned.”

The County Court judge found the underside to be “sharp” and a

risk to children larking about and therefore awarded damages to

the boy. No proper risk assessment had been carried out by the

school, and therefore the county council, on behalf of the school,

was found to be liable.

Fortunately for schools in England and Wales, about 20% of whom

have this sort of water fountain fitted, the Court of Appeal quashed

the County Court’s decision, concluding that the freak accident

was unfortunate but that for a school to be held to be responsible

for every accidental injury would mean that the law would have

“part[ed] company with common sense.”

For further information on carrying out risk assessments and other

health and safety matters please contact David Milton.

Working at height and proposed changes to the First Aid RegulationsThe need for appropriate training and risk assessment for school

employees working at height has come into focus following a

recent criminal prosecution brought under the Work at Height

Regulations 2005.

The circumstances are that a 61 year old caretaker, injured his knees,

ankles, neck and right hand as a result of falling from the roof of

a shed at a primary school in Oldham The caretaker had climbed

onto the roof and was attempting to place plastic sheeting on it

when he tripped and fell backwards, landing on a concrete floor

three metres below. He was unable to return to work full time and

was forced to retire.

The Magistrates’ Court received evidence to the effect that the

caretaker had started work at the school 6 years before the accident

and that he had not received any training on working at height,

contrary to the Regulations. The Magistrates handed down a fine

of £7,000 and also ordered the prosecution’s legal costs to be paid,

totalling £12,260.

After the hearing the Health and Safety Inspector who led the

investigation commented: “It’s disappointing that the caretaker

had been working at the school for six years without receiving any

training on how to work safely at height. Work at height is one of

the biggest causes of workplace deaths and injuries in the UK, and

this case should act as a warning to employers about the dangers”.

In the meantime, amendments have now taken place to the

Health and Safety (First Aid) Regulations 1981. The key change is

the removal of the requirement for the Health and Safety Executive

(HSE) to approve the training and qualifications of appointed first

aid personnel.

The benefit of this is that schools will have greater flexibility in their

choice of training provider as well as the ability to choose first aid

training that is right for their school, and based on their individual

needs. However, training providers will still be required to meet a

certain standard, which will be set by the HSE. Schools, like other

employers, will also still have the same legal requirement to ensure

that they have an adequate number of suitably trained first aiders

in accordance with their first aid needs assessment. Until such time

as the Regulations change the existing law continues to apply.

If you would like to ensure your compliance in this time of

ongoing Health and Safety uncertainty please take advantage

of our offer of a free review of your existing Health and

Safety Management System.

For further information please contact

David Milton on 01225 324433 or

DavidMilton@stoneking.co.uk.

Rent Reviews in School Leases Time machines and theories about the extinction of dinosaurs

are hypothetical. Leases too, can be hypothetical. When reviewing

the rent on a property that a school has taken a lease of, or that

a school leases to others, the hypothetical lease often comes

into question.

Many leases of commercial premises include a provision allowing

the rent to change over time. This ensures that the landlord

receives a rent reflecting the true value of the property. But, how

should the rent be reviewed?

The simple answer is, read the lease. But how should the review

clause be drafted in the first place?

◆◆ How often should the rent be reviewed (if at all)?

◆◆ What sort of review should be used?

◆◆ How should the review be actioned and enforced?

◆◆ Should a break clause be linked to the review, in order that the

tenant can bring the lease to an end if it is unhappy with the

reviewed rent?

Traditionally, a lease would include a five yearly rent review to

the open market rent. The drafting and operation of this type of

rent review can be complicated, since the lease to be valued – the

hypothetical lease – needs to be carefully defined. The drafting

will specify a number of matters that are to be assumed or

disregarded in order to create the hypothetical lease. One example

of a disregard is that, if a school as tenant pays for substantial

works to a property, those works should be disregarded from the

lease for the review; otherwise the works which (presumably!)

have improved the value of the property will cause a higher rent

to become payable, so the school will pay for the works twice.

In addition, traditionally the review would be upwards only,

such that the rent must be the higher of the current rent or the

reviewed rent – very popular with landlords and potentially unfair

to tenants. In today’s market, tenants are having more success in

objecting to upwards only reviews – a lease which is long enough

to contain review provisions is valuable to a landlord anyway

(shorter leases are now more common than they were twenty

years ago) – and the government’s tenant-friendly lease code

(although non-binding) recommends that landlords should offer

alternatives to upwards-only rent reviews, if asked.

Other review clauses include: indexation review (possibly including

cap and collar provisions) and stepped increase.

In today’s market which suits occupiers, combined with these

austere times, rent review clauses can be fiercely fought over.

Both landlord and tenant will require proper legal advice in order

to ensure that they are using their resources properly and in the

most cost-effective way possible. It is well worth ensuring that

they are satisfied with the review that has been selected and that

the drafting is robust enough to withstand scrutiny.

For further advice on rent reviews and property

issues more generally, contact Chris Sharpe on

020 7324 1752 or ChrisSharpe@stoneking.co.uk.

News in brief

Biometrics in schools – new duties came into effect on 1st September 2013 There are new legal duties under the Protection of Freedoms Act

2012 which came into effect on 1st September 2013 for schools

wishing to use biometric information about pupils for the purposes

of using automated biometric recognition systems. Schools using

such systems, or planning to install them, are advised to plan, in

advance, and make arrangements to notify parents and obtain

the consent required under the new duties, as set out in guidance

issued by the DfE. This will be particularly relevant for schools where

pupils are already enrolled and using the relevant systems. There

will be no circumstances in which a school or college can lawfully

For further advice or information about any of the news items or wider issues relating to your school, please

contact the Head of our Independent Schools Team, John Clarke, on 01225 324494 or JohnClarke@stoneking.co.uk.

s

s

News in brief (continued)

process, or continue to process, a pupil’s biometric data without

having notified each parent of a child and received the necessary

consent after the new duties come into effect.

DfE updates its advice on standards for school premises On 2 May 2013, DfE updated its advice on standards for school

premises. The advice, which is non-statutory, is intended to help

schools understand their obligations and duties in relation to the

School Premises Regulations 2012 and Education (Independent

School Standards) (England) Regulations 2010.

There are fewer regulations than previously and they are less

prescriptive, allowing schools more flexibility in how they use their

premises. Many regulations state that provision must be ‘suitable’.

This is not precisely defined, but schools must take into account

the age, number and sex of pupils, and any special requirements

they have, when determining whether provision is suitable. This

guidance advises on how to meet the regulations. It also provides

signposts to other, more general, building and premises related

legislation and guidance of relevance to schools. For further

information visit the DfE website.

IT Policies We recently acted for an independent school defending an unfair

dismissal claim at the employment tribunal. In this case, a member

of staff brought inappropriate images into school on his personal

laptop. The school allowed members of staff to bring in personal

laptops but did not make specific reference to personal computers

within its IT policy. A new feature of windows media player is

the media sharing facility which, if a computer is not set up with

appropriate security settings, allows media files to be shared with

other computers on the same network.

A pupil accessed the images and they were shared very quickly via

Facebook and email, resulting in a local paper publishing a story

about the incident. The school carried out a thorough disciplinary

process and dismissed the teacher for gross misconduct (bringing

inappropriate images into school and damaging the school’s

reputation). The employment tribunal held that the dismissal was

fair and fully endorsed the school’s actions. As schools increasingly

allow staff and pupils to bring their own devices into school to

connect to the school network, it is important that schools make

sure all users are aware of file sharing features and that school

policies refer to both school-owned and personal equipment and

clearly state that staff and pupils are responsible for the material

that they bring to school.

Child Protection and Safe Recruitment DfE have launched a consultation on radical changes to the guidance

on recruitment and child protection. The thrust is to radically reduce

the degree of DfE guidance and to place the responsibility for good

practice firmly on schools. Notable changes will be firstly that it will

no longer be a requirement for schools to have a governor with

overall responsibility for child protection – a governor must be

nominated to deal with allegations against the headteacher – and

secondly that although there is a general requirement that those

who sit on staff recruitment panels should be trained there will no

longer be a statutory requirement that one member of the panel

should have undergone training approved by the Secretary of State.

The consultation document and draft guidance are available on

the DfE website under Consultations. The consultation closed on

Thursday 20th June.

Carbon Reduction and Sustainability Sally McFadden, head of our Energy and

Environment Team, recently qualified as

an Associate Member of the Institute of

Integrated Environmental Management

& Assessment which is an internationally recognised body and the

leading environmental institute in the UK. This expands our expertise

in the developing field of energy management and sustainability

and entitles Sally to use the suffix AIEMA. Sally McFadden 01225

326794 or smf@stoneking.co.uk

Stone King LLP 13 Queen Square Bath BA1 2HJ Tel. 01225 337599 Fax. 01225 335437

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New Hall Market Place Melksham Wiltshire SN12 6EX Tel. 01225 337599 Fax. 01225 335437

www.stoneking.co.uk email: education@stoneking.co.uk © Stone King LLP 11/2013

Independent Education Spotlight deals with some current legal topics. It should not be used as an alternative to specific legal advice on the individual circumstances of a particular problem. Stone King LLP – registered limited liability partnership no OC315280, registered office 13 Queen Square, Bath BA1 2HJ

Your Contacts

Education: John Clarke Partner Roger Inman Partner Graham Burns Partner Stephen Ravenscroft Partner Richard Gold Consultant Geoffrey Davies Consultant Tom Brooke ConsultantLaura Berman Senior Associate Michael Brotherton Senior Associate Kate Grimley Evans Solicitor Nicola Berry Solicitor Lydia Brookes Associate Ciara Campfield Associate Laura Giles Solicitor Venetia Phipps Solicitor

Health & Safety: Andrew Banks Partner David Milton Associate Solicitor

Construction Team:Julia Davenport-Cooper

Senior Associate Melanie Parker Associate

Charity & Social Enterprise: Michael King Partner Jonathan Burchfield Partner Robert Meakin Partner Ann Phillips Partner David Quentin ConsultantAlexandra Whittaker Senior Associate Hannah Kubie Senior Associate Tom Murdoch Senior Associate Vicki Bowles Barrister Sarah Clune Solicitor Darren Hooker Solicitor Reema Mathur Associate Sophie Pughe Solicitor

Commercial Property: Hugh Pearce Partner Stephanie Howarth Partner Hugo Greer-Walker Partner

Corporate and Commercial: Roy Butler Partner Brian Miller Senior Associate Tamsin Eastwood Senior Associate Caroline Leviss Senior Associate

Employment: Nick Watson Partner Peter Woodhouse Partner Jean Boyle Associate Caroline Banwell AssociateVictoria Blake HR ConsultantAgie Galea HR Consultant Paul Tunnicliffe HR Consultant Amy Gordon Solicitor

Energy & Environment: Sally McFadden Associate Sarah Lawson Paralegal