A raft of possible legislative measures are proposed by the new Government to improve worker rights.
These include:
- Basic individual rights from day 1, the most important of these being protection from unfair dismissal without a 2 year qualifying service requirement.
- Restrictions on probationary periods and activities during the probation period.
- A right to “switch off” allowing workers to be non-contactable outside of agreed working hours.
- Rules to prevent abuse of zero hours contracts and a possible right to a contract where regular hours are worked.
- New rules around flexible working requests including a right to compressed hours, i.e. the right to work 4 longer days a week instead of 5.
We will be hosting a series of seminars this year looking at these topics in more detail and considering the impact for schools.
Fire and Rehire
On 18th July 2024 the Government introduced a new statutory Code of Practice on Dismissal and Re-engagement, which employers must observe if they are proposing to fire and rehire staff.
Key obligations include using the practice only as a last resort and requiring consultation “for as long as reasonably possible”.
Whilst there is no substantive claim for a breach of the Code, meaning there must also be an underlying claim such as unfair dismissal or discrimination, the Employment Tribunal will have regard to whether an employer followed the Code in relevant cases. Whilst the practice is far from common in the schools sector, it should be borne in mind as the Tribunal have a power to award a 25% uplift in compensation if the Code is found not to have been followed in relevant circumstances.
There is also speculation that the Government will outlaw the practice, though perhaps only after gathering and assessing evidence as too whether the Code has reduced employer’s appetite for the practice or at least instances of poor practice.
Teacher Pensions and CEO Participation
We are frequently asked to advise on whether an individual taking up a Chief Executive Officer (CEO) role at an academy trust can remain enrolled in the Teachers’ Pension Scheme (TPS), as more often than not, they will have previously been a headteacher and wish to remain part of the TPS. Before assuming that they will be eligible for TPS, or promising that TPS will be part of their contractual package, you should consider whether the CEO’s role satisfies the requirements to qualify for TPS and what steps you should take to minimise the risk that later down the line the TPS removes them from the scheme and refuses to pay accrued benefits.
We have prepared a detailed briefing on this question and the TPS guidance on “Eligibility for membership of the Teachers’ Pension Scheme” published in March 2024 (TPS Guidance). To receive a copy, please contact our Schools HR team.
Complex Workplace Investigations
We often receive enquiries from schools in relation to workplace investigations. In many instances investigations have a vital part to play when applying HR policies. We explore below the triggers behind a decision to instigate a workplace investigation and the considerations when choosing your investigator, as well as the benefits of choosing to use an external investigator. It is not intended to cover all scenarios and we recommend seeking further advice where necessary.
Triggering an investigation
A workplace investigation can be triggered in a number of different ways:
- Allegations of misconduct against an employee.
- A grievance raised by an employee.
- Receipt of a whistleblowing disclosure.
- Financial irregularities.
- Exam irregularities.
Often the trigger points are dictated by the complexities of the case in hand, or the seniority of the employees involved. However, the Acas Guide to Discipline and Grievances at work states that “Employers should carry out any necessary investigations, to establish the facts of the case”. In all cases employers should be following as a minimum the Acas Code of Practice on disciplinary and grievance procedures. It is important to note that employment tribunals will take the Code into account when considering relevant cases.
Any investigation should seek to find out what can reasonably be established about the issue/s or concerns raised and can make recommendations as to whether any further action is necessary based on the findings of the investigation. An investigation can also provide learning opportunities.
As well as workplace investigations, we can also offer support with other types of investigations such as safeguarding, governance, and the investigation of parental complaints (or indeed the handling of them).
Investigation Terms of Reference
Whilst the matter to be investigated may at first seem straight forward, it is always a good idea to draft terms of reference, so that it is recorded what may have triggered the investigation and how the investigation is to be approached. The terms of reference may help to refine the key focus for the investigation, where for example the allegations are wide ranging or lack some specificity.
The terms of reference may indicate how the investigation report should be framed and whether any broader conclusions or recommendations are invited. This is particularly important where there is a risk that more wrongdoing may be uncovered in the investigation than might at first appear.
Choice of Investigating Officer
This is an important decision for you to make and will be determined by the nature of the issues / concerns. Before making this decision, you should consider:
- Who the matter is relating to, for example, if a grievance has been made against a Headteacher.
- Skills, expertise, and capacity of staff internally.
- Any possible involvement of an internal investigator prior to the investigation commencing.
- Consideration of allegations of bias if using an internal investigator.
- Working relationships once the investigation has been concluded.
- When considering the above, whether an external investigator would be best placed to carry out the investigation.
Benefits of an external investigation
The most significant benefit of engaging with an external investigator is that of independence and impartiality, providing reassurance to both those being investigated and those from whom information is required. They will approach any investigation with an open mind. They will provide additional capacity as well as the ability to undertake what is likely to be a painful process for all concerned.
There are broader benefits to be felt in terms of crisis management when the matter is particularly complex or contentious. We are able to broker external investigators on your behalf, or draw together an investigation team which could be merited depending on the circumstances involved.
There is also an opportunity to source a technical expert when appropriate.
From the outset the legal implications will be considered and making the decision to engage with an external investigator can provide leverage further on in the process.
Key principles and approach of a workplace investigation
The role of the Investigating Officer is to be fair and objective so that they can establish the essential facts of the matter and reach a conclusion on what did or did not happen. The Investigating Officer should look for evidence that supports the allegation/s as well as evidence that contradicts them.
The investigation should be conducted without an unreasonable delay, and this will often form part of your decision making when choosing an Investigating Officer.
The Investigating Officer should carry out as much investigation into the matter as is reasonable in all the circumstances. This legal test is judged objectively by reference to the ‘band of reasonable responses.’
A sufficient investigation should establish reasonable belief. Any decision must result from a reasonable investigation of the facts. The basic principles of fairness should be applied to all workplace investigations.
Once the decision has been made to investigate whether internal or external, the process must be left with the investigator. HR’s role at this time should be limited to providing information as requested by the investigation as well as providing wellbeing support to any member of staff who is involved directly or indirectly with the investigation.
The burden of proof is on the balance of probabilities (civil), based on the evidence, the alleged offence is more likely to have occurred than not. An Investigating Officer does not have to prove beyond reasonable doubt (criminal).
The Investigating Officer will carry out an initial review to establish what evidence and documentation they wish to see, as well as identifying witnesses who they would like to meet with. They must have sight of, and follow the procedure outlined in the relevant policy. It is the organisation’s responsibility to check that the relevant policy has been followed.
The requirement for an investigation to take place before any potential disciplinary action is critical. This is true even in cases of apparent obvious guilt or where the employee admits guilt.
The investigator is not responsible for making decisions, they draw conclusions based on the evidence they have collated and put forward recommendations.
Preliminary investigations
Some policies set out a requirement for a preliminary investigation to take place. Where this is the case in your organisation, or you are uncertain whether a full investigation is necessary or appropriate a preliminary investigation can be useful. Usually this would be limited to gathering appropriate evidence on the matter via brief fact-finding meetings or witness statements.
When to seek further advice
Any investigation can present common and / or more unique challenges. The team can support with advice around; terms of reference, conflicts of interest, further decision-making following conclusion of the investigation, DSARs, evidence sharing, disclosure of the investigation report, as well as possible litigation / employment tribunal claims.
Should a recommendation of the report suggest regulatory follow up, i.e., to the TRA or DBS, we can also provide guidance on these processes.
Training
We appreciate that in certain circumstances it is more efficient to investigate internally so to further support our clients we can provide training and/or advice to help avoid the pitfalls of an investigation, how to conduct a fair investigation, what an investigation report should cover, as well as how to prepare for a potential hearing should the matter progress to a formal process.
Further Information
For further information on workplace investigations please contact Penny Reid, School Investigations Lead at preid@wslaw.co.uk or 020 3735 1907 or a member of our Schools HR team at schoolshr@wslaw.co.uk or 0345 026 8690.