Catch up: Advice for the current times

An on demand event jointly hosted by the NAHT and Discovery Education

In this webinar, we aimed to cover:

• Reasonable adjustments at school
• Part-time working
• School classroom temperatures
• Home and flexi-schooling
• Alcohol and drugs
• School calendar

 

Reasonable adjustments at school

This document aims to provide you with some information, advice and guidance to help you understand what reasonable adjustments are, when you will need to consider them and how best to put such arrangements in place.

As a school leader, you have a duty of care to your staff and a legal duty, under the Equality Act 2010, to consider, and then make, reasonable adjustments to meet the needs of particular groups of staff. Understanding your duties and being ready to act on them will help to protect you in the event of a challenge that you aren’t doing enough.

 

Reasonable adjustments – let’s consider some practical examples

Reasonable adjustments, to ensure employees with a permanent or temporary impairment or disability can work effectively, don’t have to cost very much or require you to make significant changes to the school’s working environment.

There’s scope to be creative in generating potential reasonable adjustments. Here are some practical examples:

• Provide/help with transport and a nearby parking space for a disabled worker
• Ensure the school’s premises are modified and accessible, such as installing automated doors, providing ramps, quiet areas, alternative formats of signage or directions around the school
• Modify equipment to support a disabled worker (e.g. supportive chairs, height-adjustable/standing desk or a specialist keyboard)
• Alter recruitment assessment procedures, such as giving candidates extra time, providing assistive technology or ergonomic equipment
• Provide a mentor/companion to support an employee in using new adjustments (such as speech or text software) or coping strategies (common, for example, with dyslexia or mental health conditions)
• Modify duties, workload, working patterns, location or working hours to provide support
• Put in place a ‘phased return’ after a prolonged period of sickness absence
• Facilitate time off during working hours, for example, for hospital appointments, physiotherapy, counselling or ongoing treatment
• Provide an interpreter (for people who, for example, are deaf or have a speech impediment)
• Modify sickness absence triggers if an absence is related to a disclosed condition
• Tailor performance objectives to match the capacity of the member of staff
• Consider flexible working.

Keep in mind that the purpose of agreeing to and making reasonable adjustments is to minimise, reduce or prevent any disadvantage for a member of staff who has a recognised disability or other impairment so that they can do their job. However, adjustments, permanent or temporary, need only be reasonable, and this is always going to be a matter for managerial discretion.

 

As a school leader, when should I make reasonable adjustments?

Short answer: as soon as you know that a workplace feature or practice puts a member of your staff at a disadvantage. The following checklist describes circumstances where the exercise of managerial discretion is required:

• When you become aware of a staff member’s impairment or disability
• When you are reasonably expected to know an employee has an impairment
• When a member of staff asks for adjustments
• When a member of staff is struggling with any part of their job
• When either a staff member’s sickness record or their delay in returning to work is directly related to the nature of their impairment or disability.

 

How can I make reasonable adjustments? 

In any of the circumstances outlined above, you should meet the member of staff to discuss what you can do to support them. It’s best practice to set out in writing any agreement and subsequent arrangements you make.

As the employer, you don’t need to change the nature of the job that the member of staff does; you simply need to discuss what reasonable adjustments you could make. Where there are reasonable costs associated with modifying the staff member’s equipment or working arrangements, the employer is responsible for paying.

Schools can turn to the staff member’s GP or occupational health service for advice on reasonable adjustments. A government scheme, Access to Work, provides advice, support and, in some circumstances, funds to cover additional equipment, transport to work or a support worker/mentor.

 

What if I think an adjustment is not reasonable?

There may be circumstances where agreeing to modifications to workplace features or practices is not reasonable. Therefore, it can be lawful to refuse to make them.

Whether an adjustment is reasonable will depend on an assessment of factors:

• Is the adjustment practical to make?
• Do you have the resources to pay for it?
• Will the adjustment overcome or reduce the disadvantage for the staff member?
• Will adjustments impact unfairly or disproportionately on others?

If you decide an adjustment is not reasonable, it’s best to review the original request, modify it and make any subsequent adjustment so that the changes you make fall into a range of reasonable actions.

 

Don’t forget the need to make reasonable adjustments for job applicants

It’s not just your current staff you need to consider when making reasonable adjustments, but all visitors to your school, including job applicants.

In this respect, you should ask job applicants who have disclosed an impairment whether they need any reasonable adjustments for any part of the recruitment and selection process.

Equally, before you offer someone with an impairment a job, you must ask them what reasonable adjustments are needed to determine whether they can carry out essential functions of the job with the reasonable adjustments in place.

 

What happens if I don’t make reasonable adjustments?

In short, failure to make reasonable adjustments, where there is a case to do so, will amount to ‘disability discrimination’.

An employee who feels discriminated against may raise matters with their line manager informally, invoke a formal grievance or, in more acute cases, bring a claim against the employer to an employment tribunal.

 

Part-time working in schools

An overview of part-time working

Let’s start with a clear understanding of a part-time member of staff. A part-time employee is any person who works fewer hours than a full-time employee – it really is that straightforward. The most important aspect when dealing with part-time members of staff is that you cannot treat them differently (that’s more or less favourably) just because they work fewer hours than a full-time member of staff.

The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (amended in 2002) set out statutory protection for part-time employees. All part-time employees are protected – irrespective of the number of hours they work. In practice, this means part-time members of staff should get the same treatment for the following:

• Pay, including sick pay, maternity, paternity, adoption leave and so on
• Pensions benefits
• Holidays
• Training and career development
• Selection for promotion, transfer or redundancy
• Flexible working.

Employers can apply certain terms and conditions of employment on what’s called a ‘pro-rata’ basis, which effectively means members of staff will receive a term or condition in proportion to their actual working hours. So, if a part-time member of staff works for half the week, their pay is half of that paid to a full-time member of staff and so on. Employers often refer to full-time employees as an ‘FTE’ – this stands for ‘full-time equivalent’. An employer may refer to an employee who works for three days a week as 0.6 FTE. For those working two days a week, it’s 0.4 FTE. And for staff working two and a half days a week, it’s 0.5 FTE.

The remainder of this advice document provides you with the answers to frequently asked questions.

 

Are there any circumstances where I can treat part-time employees differently?

Yes, there are a number of well-defined situations where an employer doesn’t have to treat part-time employees in the same way as full-time employees. However, in such situations, the employer must be able to show there is a good reason to do so – this is called an ‘objective justification’.

For example, an employer may provide health insurance for full-time employees but not for part-time employees. The ‘objective justification’ may be the costs involved are disproportionate to the benefits part-time employees are entitled to. In these circumstances, the employer may ask part-time employees to contribute.

 

If a part-time employee gets treated less favourably, what can they do?

Part-time employees should first discuss any relevant issue with their line manager or trade union representative. The employee has the right to get a written statement of reasons for the treatment from their employer. The request for this information should be in writing, and the employer must provide a statement of reasons within 21 calendar days.

If the employee isn’t satisfied that the reasons provided were ‘objectively justified’, they can appeal and take a case to an employment tribunal.

 

Do employees have ‘the right’ to work part-time?

No, there is no statutory right that entitles full-time employees to move to working on a part-time basis. However, if an employer does not give adequate consideration to a request to work on a part-time basis, they may find the employee could claim compensation for the following:

• Indirect sex discrimination, under the Equality Act 2010, on the grounds the employer is applying an unjustified condition that a significantly higher proportion of women would find it harder to comply with, than men
• Unfair dismissal if resulting from an inadequate consideration of a request to work flexibly; from 30 June 2014, all employees with 26 weeks’ can request to work flexibly, and a duty was placed on employers to consider all requests reasonably.

 

How should we deal with job applicants who want to work on a part-time basis when we have clearly advertised the vacancy on a full-time basis?

There may be occasions where job applicants for full-time posts indicate, during the selection process, they would prefer to work on a part-time basis or job-share arrangement. If you don’t appoint such an applicant to the vacant post, a female applicant may still claim indirect sex discrimination even though the advert was for a full-time role.

An employer would have to show the refusal to appoint was a proportionate means of achieving a legitimate aim, such as the effective performance of the job. In other words, the employer’s insistence on full-time working must be justified as a criterion to avoid any claim of discrimination against women. Just advertising the post as full-time isn’t enough to justify a refusal to agree to part-time working.

 

Can an employer insist that part-time employees work full-time or increase their working hours to meet the school’s needs?

No. If a part-time employee is contracted to work an agreed number of hours, any unilateral attempt by the employer to change that arrangement will amount to a breach of the employment contract. The insistence by the employer may give rise to a claim for indirect sex discrimination, automatic unfair dismissal, a breach of the 2000 Regulations or contravention of flexible working legislation.

In a landmark school-related case (2009), a head teacher was told she could not job-share after maternity leave. The local authority said the school had been found by Ofsted inspectors to have serious weaknesses. The governors, therefore, insisted she returns to work five days a week because clear leadership was needed by a single post holder. The tribunal found this decision amounted to sex discrimination and recommended the local authority and governors should consult the head teacher within 28 days to find a solution that would enable her to return to the school.

 

How does a part-time employee identify a full-time comparator?

For part-time workers, to bring a claim for less favourable treatment on the grounds of their part-time status, they must identify a full-time comparator (in other words, a full-time colleague who does the same or broadly similar work).

 

What about annual leave for part-time school support staff?

A part-time employee is entitled to the same paid holidays, on a pro-rata basis, as a full-time employee. This includes entitlement to bank holidays.

Under the Working Time Regulations 1998, a part-time employee has the right to 28 days pro-rata paid annual leave. Assuming that full-time employees are entitled to 28 days basic annual paid leave plus paid bank holidays, part-time employees are entitled to the same proportion of leave based on their normal weekly working hours.

 

Can a part-time member of staff be selected for redundancy?

Yes, if you follow the correct process. If, however, the sole reason for redundancy selection and dismissal is that a member of staff is part-time, this would amount to a) less favourable treatment, b) unfair dismissal and c) indirect sex discrimination.

 

As a school leader, what practical steps can you take to protect yourself?

There are a number of practical steps you can take to ensure you are operating within the relevant statutory framework and good practice. Working with your HR service provider and school business leader, you should do the following:

• Conduct an audit of part-time employees at your school to satisfy yourself that proper employment arrangements, especially pay arrangements, are in place
• Pay attention to any job-share arrangements to ensure there is sufficient parity between the job-share partners and, in equal measure, with full-time comparator colleagues where work of the same or a similar nature is done
• Make sure the employer’s terms and conditions are applied fairly and correctly to both term-time employees and employees working across the full calendar year
• Rectify any discrepancies swiftly and in consultation with any employee who you may identify as an outcome of the audit.

 

School classroom temperatures

Purpose of this advice document

This advice document simply sets out the statutory [and professional practice] position relating to school temperatures, the impact of excessive temperatures and what you can do as head teachers and school leaders to mitigate this very seasonal issue.

 

An overview and the legal position

Recent high temperatures have made working, teaching and learning in schools particularly challenging. In the past, the Education (School Premises) Regulations 1999 set out legal thresholds for minimum temperatures in schools. These were as follows:

• 18ºC in areas of normal levels of physical activity (eg in the classroom)
• 21ºC in areas of lower than normal activity (eg a school’s sickbay)
• 15ºC in areas of higher than normal activity (eg a school’s gym).

While these regulated temperature thresholds were discontinued in 2012, many schools still refer to them because they were the last meaningful guide to temperature control.

Currently, there are no set and (therefore) enforceable minimum or maximum temperatures set for workplaces, including schools. Health and safety regulations simply stipulate that working temperatures must be ‘reasonable’ and must ‘not be excessive’.

The World Health Organisation, however, recommends 24ºC as a maximum for comfortable working. All this said, under health and safety legislation, all employers have a duty of health and safety to monitor working conditions and take proportionate action to remedy danger and deficiencies in the workplace (including excessive heat conditions).

 

The impact of excessively-high classroom temperatures

When temperatures soar without a great deal of notice, as is often the case across England, Wales and Northern Ireland, the impact can be equally sudden and typically affects staff and pupils alike:

• Pupils can quickly become lethargic and lose focus
• They are likely to lose their concentration and cognitive capacity
• Their health may be compromised, especially if they are vulnerable to heat
• Young children don’t and won’t know how to keep cool, so they can overheat quickly
• Staff, especially teaching staff, may tire at a faster rate because they are ‘performing’
• Certain staff are especially vulnerable to high temperatures (eg pregnant women).

 

The role of school leaders

At times of excessively-high temperatures, it’s important for school leaders to act and, equally important, to be seen to act:

• Parents and carers will expect school leaders to take appropriate action
• Pupils will benefit from the steps you take and will continue to make progress
• Staff will appreciate your support and the steps you take
• You’ll be discharging your duty of care and your health and safety duty.

 

The steps you take only need to be reasonable, proportionate and cost-effective. We set out below (and in the remainder of this advice document) a list of actions you could take. It is also important and prudent to record what choices you make and develop a supporting action plan – this will be helpful to use for communication and, at the same time, as a defence if the school or its leaders face any challenge.

 

What can schools leaders do in the circumstances?

Structure

• Establish a health and safety task force that’s chaired by your school business leader
• Commission the task force to carry out a risk assessment across the school
• Assign weather forecasting and mitigation plans to the task force
• Invite pupils to contribute to the task force.

 

Practice and prevention

• Consider adjusting the school day (with the consent of parents of course)
• Close blinds and curtains to prevent sunlight from entering the classrooms
• Consider appropriate adjustments to the school menu (eg minimise hot food)
• Shift desks so that they are away from direct sunlight
• Move lessons to cooler areas of the school
• Ensure there is adequate ventilation of pure or fresh air in the classrooms
• Install sun-deflecting materials or blinds to classrooms’ windows
• Moderate pupils’ physical activity and move PE lessons to cooler times of the day
• Encourage children to stay in shaded areas at break times.

 

Quick wins

• Ensure children have adequate access to water at all times (including throughout lessons) • Arrange to hire air conditioning units (fans are ok, but they are not as effective)
• Keep a stock of sun-protection aids (eg after-sun lotion)
• Relax the school’s uniform policy (eg lighter and/or shorter trousers for boys)
• Raise awareness with parents, so they provide their children with adequate sun protection
• Provide ice lollies at break times – guaranteed to win support!

 

Home and flexi-schooling

Parents have the right to homeschool their children, and the government accepts many children benefit from being educated at home.

Parents will cite a variety of reasons for their decision:

• They may feel the school isn’t addressing their child’s needs appropriately
• They may believe the school isn’t adequately dealing with a bullying issue
• They may not be happy with the content of the national curriculum
• They may remove their child because they fear the possibility of permanent exclusion.

School leaders are often resistant to the planned removal of a child; they work hard to reassure parents and attend to their needs and concerns. However, people frequently view schools as being complicit in the removal of the child.

A recent study by Ofsted on the move to home education from secondary schooling in the East Midlands has linked a move to home-schooling to a perceived increase in off-rolling, particularly of children with special educational needs and disabilities (SEND) or behavioural difficulties.

A YouGov survey of teachers also seems to back this view.

 

Alcohol and drugs at work

The legal provisions relating to alcohol and drugs and a few other things you need to know

The impact of alcohol and drugs on people is often the same and many employers will therefore deal with each of these issues interchangeably. However, drugs differ significantly from alcohol as use of drugs is a) often illegal and b) impairs the physical and mental capacity of users more rapidly than alcohol abuse.

Under the Health and Safety at Work Act 1974:

• All employers have a general duty to ensure the health, safety and welfare of their employees.
• If an employer knowingly allows an employee, under the influence of alcohol or drugs, to continue working and this places the employee and others at risk, the employer could be liable to prosecution.
• Employees are required to take reasonable care of themselves and others who could be affected by what they do.
• Employees could also be liable to prosecution if their alcohol consumption or drug-taking puts safety at risk.

 

Under the Misuse of Drugs Act 1971:

• It is an offence to possess, supply, offer to supply or produce controlled drugs.
• It is also an offence for the occupier of the premises to knowingly permit the production or supply of any controlled drugs or allow the taking of such drugs on the premises.
• Under common law, it is an offence to ‘aid and abet’ an offence under the Misuse of Drugs Act.

 

Schools are not legally required to implement alcohol and drugs policies, or to pay for the treatment for employees with alcohol and drug problems. Employment law protection, however, requires schools to treat alcohol or drug ‘dependence’ as a form of sickness, rather than a cause for dismissal, giving an employee the opportunity to overcome their problem.

With this in mind, a policy that supports school leaders in the management of these complex, challenging and sensitive areas is highly recommended. Your employing body will either be able to provide such a policy or should be commissioned to produce one.

A good practice policy should set out what support is available to those employees presenting with alcohol and drugs-related conditions and how alcohol and drugs-related matters are dealt with by the school.

 

Before you deal with an employee with an alcohol and / or drugs problem

• Employees presenting with such problems have the same rights to confidentiality and support as they would if they had any other medical or psychological condition.
• Disciplinary action should be a last resort; a tribunal may find a dismissal unfair if an employer has made no attempt to help an employee whose work problems are related to alcohol consumption or drug-taking.
• The cost of recruiting and training a replacement may be greater than the cost of allowing someone time-off to obtain expert help.
• Many people with an alcohol problem are able, in time, to regain full control over their drinking and make a full and sustainable return to work.
• It may be very difficult for employees to admit that they have a problem; they need to know that school leaders will treat their problem as a ‘health’ problem rather than a cause for disciplinary action or dismissal.

 

How can I deal with someone presenting with alcohol and / or drugs-related conditions?

• Speak to the employee, in private, and as soon as possible.
• In your role as a school leader, outline your particular concerns and provide some evidence that supports your concerns (examples of performance, conduct).
• Ask the employee for the reasons for their (impaired) performance and / or conduct and question whether it could be due to a ‘health’ problem, without specifically mentioning alcohol or drugs, in the first instance.
• If appropriate, discuss the school’s alcohol and drugs policy and the help available.
• Under the requirement to look after themselves, encourage them to go and see their GP.
• Make arrangements for an occupational health assessment at the earliest opportunity.
• Agree next steps – say, time off for visits to the GP and occupational health
• Review the situation at agreed intervals and confirm arrangements in writing.

 

But what if an employee is intoxicated on school premises?

• Two members of the school’s SLT should get the employee to a safe location on school premises and stay with them until a decision has been made about what to do next.
• The school should ensure the employee gets home safely and there is a responsible adult at the employee’s home to provide care for the intoxicated employee.
• If appropriate, and with HR support, you may need to consider ‘suspending the employee on medical grounds’ especially if the nature of the intoxication is likely to be repeated.
• In circumstances where the employee is demonstrating unacceptable conduct or is threatening violence, you should call for the police, without hesitation.

Please remember to make records of incidents; these will be needed as individual cases develop.

 

The school calendar

A reminder of activities that need to be reflected in the autumn term calendar and event diary:

• INSET days
• Plans: School Improvement Plan; School Self-Evaluation Form; Ofsted-ready plan
• Induction of new staff
• Parents’ evenings and PTA meetings
• Governing body meetings
• Staff appraisals
• Census [2020/2021 dates can be found here]
• Single Central Record review / safeguarding training
• School trips
• Health and safety walkaround, first aid, accident and medical records review
• Open days / national campaign and international days of remembrance
• Staffing and budget review
• Asset register
• Premises review
• Website review
• Christmas play and other religious festivals

 

If you would like further information about the Pathway programme please visit www.discoveryeducation.co.uk/NAHT