This time of year is a natural recruitment cycle in the education sector, meaning Schools, MATs and other education providers are in full swing of recruiting staff for the new academic year – issuing offer letters, contracts of employment and taking up references. Whilst in most cases this process is relatively straightforward, it can have its common pitfalls. Our Schools HR team consider some of the common issues.
Withdrawing offers of employment
Conditional Offers
Provided that the offer of employment was made conditional on receipt of satisfactory references and other pre-employment checks (DBS etc.), withdrawing an offer should be relatively straightforward. This often happens where you have received unsatisfactory references (or no references at all) or where the other pre-employment checks such as DBS and right to work checks have not been satisfied. From 1 September 2022 the Keeping Children Safe in Education (KCSIE) statutory guidance also requires that online searches are completed as part of pre-employment checks (see our guidance note).
It is therefore imperative that your offer letter is clear that the offer of employment is conditional and sets out the conditions that must be met before employment is confirmed.
Unconditional Offers
In some cases, an unconditional offer of employment may be made. This is not common but does happen particularly where the employer wishes to secure an impressive candidate with a proven track record in the sector or area of expertise. An unconditional offer of employment will make it more difficult to withdraw the offer because it may mean that there is already a legally binding contract between the parties.
It is important to note that the existence of a contract does not mean that the offer cannot be withdrawn at all – however it may mean that in order to do so lawfully you need to give the employee the notice required under the contract of employment (or a reasonable period of notice if no notice period has yet been agreed) in order to lawfully bring the contract to an end. This could prove very costly since, in the case of teachers for example, the notice is one term. In the case of an executive position, notice can be anywhere between 3-6 months.
Withdrawing an unconditional offer of employment without notice or a payment in lieu of notice may give rise to a claim for breach of contract and/or damages.
Data Subject Access Requests
Where an offer of employment is withdrawn, the applicant may make a Data Subject Access Request (DSAR). This is most common where the offer has been withdrawn because of unsatisfactory references and the applicant wants sight of the reference that has been sent or received.
Generally, confidential references are exempt from the right of access. This exemption applies regardless of whether you have given or received the reference. As a practical point therefore and for the avoidance of any doubt, all references should be marked strictly private and confidential.
However, data contained in interview notes and internal emails/communications about the applicant is unlikely to be exempt from the right of access. It is therefore important to remember that these documents may be seen by the applicant. For this reason notes and internal communications should be professional and use appropriate language that does not disparage the applicant in any way.
Whether the applicant has requested exempt or non-exempt data, you still have an obligation to deal with the request in accordance with the legal framework and the UK GDPR and Data Protection Act 2018. Even where you are relying on an exemption and not providing the data requested, it is important to respond to the request within the specified timescales (usually within one month of receiving the request) and inform the applicant of the exemption you are relying on.
Failing to deal with a DSAR within the legal framework or at all could result in a formal complaint being made to the ICO.
What if things go wrong after employment has started?
Say you have avoided the pitfalls of having to withdraw an offer of employment, and you haven’t had to deal with a DSAR. The employment has commenced and…the employee just isn’t meeting expectations. What now?
Probationary period clauses in the contract of employment could provide you with the necessary protection since they serve as a ‘trial’ and give you and the employee an opportunity to fairly determine whether the employment is working in practice. Probationary periods also allow you to terminate the employment contract lawfully, usually with little to no notice. A reasonable probationary period is usually for a period of three months but can be longer depending on the seniority of the employee and the role they perform. Notice to terminate the contract during the probationary period could be as little as one week (the statutory minimum for a new employee who has been employed for less than two years).
Whilst such clauses may not have been commonplace in the sector previously, they are increasingly being used to provide Schools, MATs and other education providers with the protection they need. However, it is fundamental that the clause is properly drafted and it must be appreciated that probationary periods will not be a permanent solution to future conduct or capability issues that the employee may face. In most cases, employees will not be surprised to see a probation period referenced in the contract of employment.
If you operate a probation policy, it is advisable to comply with that policy before terminating employment during the probationary period, even where the policy is not contractual.
Equality Act 2010
Irrespective of whether a job offer is conditional or unconditional, or whether you are terminating the employment during the probationary period, it is important that you are not making these decisions because of a protected characteristic of the applicant/employee. This may amount to unlawful discrimination under the Equality Act 2010 (EqA 2010). Protection from discrimination under the EqA 2010 is a ‘day one’ right and applies to job applicants as well as workers and employees.
We have seen an increase in employment tribunal claims and DSARs arising out of recruitment decisions. We strongly recommend that you take expert legal advice before withdrawing any offer of employment, terminating a contract of employment or responding to a DSAR so that you can properly understand the risks and proceed in a way that best protects your organisation.
Our Schools HR team are expert education employment lawyers and regularly advise on issues such as these, and other employment and HR issues faced by Schools, MATs, Dioceses and other education providers. They are able to review your existing contracts of employment and offer letters or provide a suite of bespoke documents for you to use, allowing you to navigate the recruitment process confidently and in a legally compliant way. They can help you manage risk and also assist should things go wrong.
If you require further advice or wish to discuss any other employment or HR related issue please contact our Schools HR team on schoolshr@wslaw.co.uk / 0345 026 8690.
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