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Key contact:
Smita Jamdar
Partner and Head of Education
T: 0800 763 1332
E: smita.jamdar@sghmartineau.com
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If this e-mail is not displayed correctly, please click here to read it online
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Education Breakfast Briefings
The Education Team at SGH Martineau run free Breakfast Briefings every term in Birmingham,
London and Leeds. Our briefings this term are:
- Complaints update
- Education Act 2011
- Student discipline update
Please click here
for further details.
Education blog
For further updates and comment on sector issues, please see our blog, Going Further and Higher.
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Contents
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Strategy, Students and Governance
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Subject access requests – reasonable searches for data and abuse of the right
of access
| read
We provide an update on a recent case illustrating how to deal with very wide subject
access requests.
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Protection of Freedoms Act 2012 receives Royal Assent
| read
We highlight the main changes made by the new Protection of Freedoms Act 2012.
Commercial
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Estates
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Be careful! You might (not) break it |
read
We discuss a recent case highlighting the importance of adhering to the conditions
in a break clause.
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The Green Deal dilemma
| read
The government’s Green Deal energy efficiency programme and what it means for colleges.
Human Resources
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The Education Act 2011: What does it mean for the relationship between colleges
and their employees?
| read
We look at some of the possible changes to colleges might make to their Instrument
and Articles in the context of employment.
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Can you make employees retire or not?
| read
We provide an update on forcible retirement following recent case law.
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Full article details
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• Strategy, Students and Governance
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Subject access requests – reasonable
searches for data and abuse of the right of access | back to
top
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On 24 April 2012, the County Court issued a decision on data-protection
issues that will be readily identified by many colleges – (i) how to respond
to very wide subject access requests and (ii) whether those subject access requests
can be refused on the ground that their sole purpose is simply to embark on a fishing
expedition to further threatened litigation (i.e. for an improper, collateral purpose).
Background
The case concerned a Mr Elliott, who had submitted complaints to Lloyds
Bank in relation to his companies which had been placed into administration and
who threatened to sue Lloyds (Elliott v Lloyds & Anr Case No. OLS51908).
Mr Elliott’s attempts to obtain pre-action disclosure of documentation by
Lloyds were unsuccessful. He subsequently submitted a very broad subject access
request for all his personal data held by Lloyds from 1 June 2008, in response to
which Lloyds bank submitted a large volume of information. Lloyds disclosed more
information ten months later when Mr Elliott made a further subject access request
for all his personal data held by Lloyds over the previous six months. Mr Elliott
sought a court order under the Data Protection Act (DPA) requiring Lloyds to disclose
all his personal data in response to both requests.
Reasonable and proportionate searches for personal data
Lloyds had identified six senior members of staff whose files had not been
searched in response to Mr Elliott’s requests. The reason they were not searched
was because those individuals were unlikely to have had any day-to-day involvement
in Mr Elliott’s companies and information held by them would either not be
relevant or would have duplicated information held by other staff which had already
been disclosed to Mr Elliott. Mr Elliott required that the further searches be conducted.
The court agreed with Lloyds’ defence i.e. that such a search would not be
reasonable or proportionate. Interestingly, the court also concluded that, contrary
to the Information Commissioner’s guidance, the provision in the DPA which
absolves a data controller from providing a copy of personal data in permanent form
where the provision of a copy amounts to disproportionate effort (DPA s8(2)) also
extended to the search for the data.
Lloyds were therefore only obliged to supply such personal data to Mr Elliott as
was found after a reasonable and proportionate search. Colleges, often toiling with
very broad subject access requests, will no doubt take solace from this element
of the judgment.
Improper, collateral purposes
Lloyds claimed that Mr Elliott sought access to his personal data simply
as a fishing expedition to further his claims in respect of his commercial interests.
They insisted therefore that the court proceedings seeking disclosure under the
DPA were an abuse of process and improper. The court accepted that if Mr Elliott’s
only motive in bringing proceedings under the DPA was to obtain information or documents
to assist his other claims, there would be no obligation to comply with the request
and the application would amount to an abuse, which should be struck out. A more
difficult question was how to deal with the current proceedings if Mr Elliott’s
motives were mixed i.e. a combination of concern that his personal data had been
misused by Lloyds and a desire to service the other litigation. The court indicated
that if it found that Mr Elliott had such mixed motives, the application under the
DPA would not be an abuse unless it could be shown that, but for the collateral
purpose (i.e. the other potential commercial claims), the application for an order
to disclose his personal data would not have been brought at all. The court accepted
Mr Elliott’s evidence in his witness statement and provided under cross examination
that he had mixed motives. It was not satisfied that, but for the collateral purpose,
the DPA proceedings would not have been commenced. Mr Elliott’s concerns about
his personal data were sufficient to enable him to commence the current application
for access to his personal data.
This case makes it tempting to refuse any request for access to personal data where
a member of staff or a student is threatening or has commenced litigation and where
it is suspected that the access request is made simply to circumvent the restrictions
of the pre-action disclosure rules. This case also, however, illustrates that, if
challenged and the court finds that the individual is an honest witness, it may
accept that the individual was motivated by concerns of privacy and data protection,
as well the collateral wish to pursue an unrelated claim. Proving a state of mind
is always a challenge and establishing that, but for the collateral litigation,
the student or member of staff would not have sought a data-subject access order,
may be a challenge too far.
Costs – a salutary warning
Though Lloyds won the argument on conducting only reasonable and proportionate
searches for personal data, the court required the bank to pay a substantial part
of Mr Elliott’s costs. A factor influencing the court’s decision was
the fact that Lloyds disclosed a significant amount of new data following commencement
of the claim by Mr Elliott. This indicated that initial searches carried out by
Lloyds were not sufficient to discharge Lloyds’ obligations under the DPA
and that Mr Elliott was justified in proceeding against Lloyds at least until he
was supplied with that information and costs incurred up to then should be awarded
to Mr Elliott.
This case was to some extent a pyrrhic victory for Lloyds. While it deployed useful
and partially successful tactics to refuse disclosure, those tactics ultimately
cost it lot of money. Colleges considering refusing a request for access to personal
data because a student or member of staff is motivated by a collateral purpose will
have to assess the probability that the refusal will be challenged in court and
hence weigh the potential costs of complying with the request with those of refusing
it. Staff and students are more likely however to submit a complaint to the Information
Commissioner rather than to seek a court order, which may not have the pure financial
consequences of a court case, but can be expensive to in terms of staff time and
resources. Like most problems, it will require a judgment call in each case.
Geraldine Swanton
Senior Associate Solicitor, Education Team
T: 0800 763 1455
E: geraldine.swanton@sghmartineau.com
© SGH Martineau 2012
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Protection of Freedoms Act 2012
receives Royal Assent
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The Protection of Freedoms Act 2012 (PFA) received Royal Assent
on 1 May 2012, though many of its provisions are not yet in force and no information
has been issued as to when they will come into force. The Act is a melange of amendments
to current legislation and below is a brief summary of some of the changes which
are relevant to colleges. A more detailed summary will be provided closer to the
date when the changes come into force.
- Safeguarding Vulnerable Groups Act 2006 (SVGA)
The amendments to the SVGA have not produced the longed-for exclusion
from the definition of regulated activities relating to children, namely the exclusion
of teaching/training of children aged 16 or 17 in higher or further education. This,
we understand, was the result of lobbying by the NSPCA. The amendments that will
be made are as follows:
- Regulated activities relating to children
Currently the definition includes any form of teaching, training or
instruction of children (other than that which is merely incidental to the teaching
of adults) and that will remain largely unchanged, with the following exception.
The PFA will exclude from that definition the teaching etc. of children which, “on
a regular basis, is subject to the day-to-day supervision of another person who
is engaging in a regulated activity relating to children” (e.g. student teachers
on practice placement).
The provision of treatment or therapy to children will also be excluded from the
definition. However, any member of staff providing personal care (e.g. toileting,
bathing, dressing) to a child will be engaged in a regulated activity irrespective
of frequency.
- Regulated activities relating to vulnerable adults
The definition of regulated activities relating to vulnerable adults
currently includes:
- training, teaching, or instruction provided wholly or mainly for
vulnerable adults;
- any form of assistance, advice or guidance provided wholly or mainly
for vulnerable adults; and
- any form of care or supervision of vulnerable adults.
The amendments which will be effected by the PFA will remove definitions (1) and
(2) above except to the extent that they relate to teaching, training etc. of vulnerable
adults in personal care (e.g. toileting, washing, bathing). (3) will be removed
and replaced by the provision of relevant personal care.
- Abolition of controlled activities
Currently, the SVGA makes provision for limited checking of those engaged in controlled
activities. A “controlled activity” in relation to children is any form
of work carried out in a further education college frequently or on more than three
days in any 30-day period, which gives the person an opportunity to have any form
of contact with children. The concept of a “controlled activity” in
relation to children will be abolished when the relevant provision of the PFA come
into force. As a result, colleges will not be permitted to conduct CRB checks on
contractors, unless they are engaged in regulated activities.
Controlled activities relating to vulnerable adults will also be abolished, but
the relevance of such activities to colleges is minimal in any event.
Staff and volunteers engaged in regulated activities will not be required to be
“monitored” by the Secretary of State. This requirement has been suspended
by the coalition government since it came into office.
Colleges will continue to have a duty to check that those they are considering appointing
to regulated activities are not barred. This can be achieved by:
- applying to the Secretary of State (presumably via the new Disclosure
and Barring Service – see further below) for information on whether a person
is barred. The individual concerned must consent to the information being disclosed;
- conducting an enhanced CRB check; or
- a CRB check which has been up-dated (see further below).
- Criminal records
Currently, CRB certificates are sent simultaneously to the individual subject of
the check and to colleges. The changes under the PFA will require the CRB certificate
to be issued to the individual only, to afford him/her an opportunity to challenge
the information contained in it.
Further, currently the police are under a duty to disclose non-conviction information
to colleges without the individual’s knowledge if they deem the information
relevant and if they believe that premature disclosure to the individual might prejudice
the criminal investigation. The PFA amends this provision to enable this practice
to continue but only if it is deemed justified and proportionate.
The PFA introduces a system of continuous up-dating of CRB checks to promote their
“portability”.
- Disclosure and barring service
The Independent Safeguarding Authority and the Criminal Records Bureau will be merged
to form a new body corporate, the Disclosure and Barring Service.
- Freedom of information
The PFA will amend the FOIA to remove an anomaly in the definition of “publicly-owned
companies”. Currently, a company comes within the ambit of the FOIA if it
is wholly owned by a public authority i.e. a college’s wholly-owned subsidiary,
but not a company jointly owned by two or more public authorities. That definition
will be changed to include any company jointly-owned by public authorities who are
already subject to the FOIA.
Where a request for a data set in electronic form is submitted, colleges will be
required, so far as is reasonably practicable, to make it available in a re-usable
format.
A “data set” is essentially raw data because it is defined as a collection
of information:
- held in electronic form;
- where most of it has been obtained or recorded for the purposes of providing
the college with information in connection with the provision of a service by it
or the carrying out of any other function by it;
- is factual information which is not the product of any analysis or interpretation
(other than calculation) and is not an official statistic;
- remains presented in a way that (except for the purpose of forming part
of the collection) has not been organised, adapted or otherwise materially altered
since it was obtained or recorded.
Where copyright in the data set is owned by the college, the re-use of the data
set will be subject to a copyright licence specified by the Secretary of State set
out in the Code of Practice issued under the FOIA, for which the college can impose
a fee. Data sets disclosed in response to such a request should then be made available
generally via the college’s publication scheme.
Geraldine Swanton
Senior Associate Solicitor, Education Team
T: 0800 763 1455
E: geraldine.swanton@sghmartineau.com
© SGH Martineau 2012
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Olympics tickets – legitimate
hospitality or bribery?
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With the Olympic Games being just months away, along with other
annual events such as Wimbledon, Silverstone and Royal Ascot, providing gifts and
hospitality is a time honoured and often expected tradition in the UK. However,
since the Bribery Act 2010 became law in 2011, corporate hospitality has become
something that businesses, including colleges, are feeling increasingly nervous
about.
Bribery has always been an offence in the UK. The Bribery Act 2010 consolidated
that position and also created a new corporate offence. The effect is that an organisation
(including a college) can now be charged with a criminal offence if it commits bribery.
Unlike an individual person, clearly a college cannot be sent to prison; however,
it can still face a criminal conviction and in the worst cases, an unlimited fine
– potentially enough to have a serious financial impact on the institution.
As a result, many organisations are taking advantage of the available corporate
defence and are putting in place adequate procedures to prevent bribery from taking
place.
As part of those procedures, how do you know whether your corporate activities
constitute bribery, and whether any changes need to be made? Whether tickets for
the Olympics, a lavish meal out or other entertainment might constitute bribery
will depend on a number of factors, such as:
- Who the gift/hospitality is given to
- What the purpose of the gift/hospitality is
- What the recipients’ circumstances are
- What the relationship between the two parties is
The Ministry of Justice guidance on the Bribery Act states that it is not intended
to prevent corporate hospitality which is typical for an organisation’s specific
sector. However, care should be taken to ensure that the line is not crossed. For
example it would be unusual for clients to attend meals without a host member of
the organisation being present.
What is permitted and what is not will therefore change in every case. In view of
the potential consequences, it is important to remain aware of what is going on
in the college and what you can do if you think you are at risk.
Adam McGiveron
Partner, Head of Industry & Manufacturing Team
T: 0800 763 1659
E: adam.mcgiveron@sghmartineau.com
Nicola Cárdenas-Blanco
Associate Solicitor, Dispute Resolution Team
T: 0800 763 1329
E: nicola.cardenas-blanco@sghmartineau.com
© SGH Martineau 2012
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Often leases entered into in more favourable times become uneconomic
as trading conditions worsen. During an economic downturn it is therefore common
for commercial tenants to try and seek to extricate themselves from expensive lease
obligations. This is permitted where the lease in question contains an option to
allow for early termination of the lease after the service of a break notice.
It is usual for conditions to be attached to the exercise of these notices. While
at face value conditions can often appear innocuous and straightforward, a failure
to adhere strictly to their requirements can result in the attempt to break being
invalid. If successfully challenged by a landlord, this can leave the tenant on
the hook for the full remainder of the lease term or (if the tenant is lucky), until
such other time as a break may be permitted by the lease.
This issue is of particular interest to colleges who can find themselves in the
situation of being either a landlord looking to challenge a tenant’s attempt
to break; or a tenant seeking to dispose of an expensive lease to premises which
are no longer required.
A recent ruling by the High Court in the matter of PCE Investors Ltd and Cancer
Research UK ([2012] EWHC 884) serves as a useful reminder to tenants that
the utmost caution is required in dealing with breaks; and to landlords that a tenant’s
compliance with any break conditions should be scrutinised to ensure that they are
strictly adhered to.
Background
PCE Investors Ltd (the Tenant) occupied premises in South London owned
by Cancer Research UK (the Landlord).
The Tenant served notice on the Landlord of its intention to exercise an option
to end the lease early on 11 October 2010 (the Break Date).
In order to validly exercise the break the Tenant was required to comply with the
following conditions:
- vacant possession of the Premises was to be provided by the Break Date;
and
- “the rents reserved and demanded by this Lease” had to have
been paid by the Tenant up to the Break Date.
The Landlord’s agent invoiced the Tenant for a full September quarter’s
rent due on 29 September 2010. The Tenant responded in advance of the Break Date
confirming that they had paid an apportioned rent figure calculated up to the Break
Date and querying whether this was the correct basis for calculating the rent due.
The Landlord did not respond to this enquiry and the Tenant did not make any further
payments to the Landlord.
Shortly after the Break Date passed, the Landlord’s solicitors wrote to the
Tenant stating that in order for the break clause to be operative it was a requirement
that a full quarter’s rent and service charge be paid by the Tenant, as had
been invoiced. The Tenant sought to argue that only an apportioned sum was required;
and even if this were not the case and a full quarter’s rent was due under
the lease, the Landlord was prevented from requiring this due to its failure to
respond to the Tenant’s query. Proceedings were issued and the matter was
eventually referred to the High Court.
The decision
The High Court ruled in favour of the Landlord, confirming that the Tenant
had failed to comply with the conditions attached to the break. The reasoning provided
by the court was:
- a full quarter’s rent was payable in advance on 29 September 2010.
As there were other conditions attached to the break, the Tenant was not in a position
to know for certain that the Lease would otherwise determine on the Break Date.
Accordingly a full quarter’s rent should have been paid;
- the Landlord was not under any obligation to respond to the Tenant to
point out the mistake in paying the apportioned sum only. In any event, the Landlord
had already previously contacted the Tenant to demand payment of the September quarter’s
rent in full.
Comment
While not establishing any new law, this case serves as a useful reminder as
to the established principles the courts will follow in dealing with quarterly rents
and the exercise of break options. It is also a further warning to tenants in light
of other recent cases that conditions attached to break clauses are strictly interpreted
by the courts and a failure to comply with their requirements in any way could be
sufficient to render an attempt to break ineffective.
Lessons for tenants
- Take detailed advice on compliance duties on exercising an option to
break well in advance of when notice is served upon the landlord.
- Where there is any doubt as to the sums payable to the landlord in order
to exercise a break, ensure that the higher figure is paid to cover the rent and
any other sums due. Once the lease has been properly terminated, a tenant can at
that point approach a landlord to seek to reclaim any overpayment.
Lessons for landlords
- Take detailed advice on compliance duties on exercising an option to
break as soon as notice is received from the tenant.
- If the tenant enquires whether any breaches have arisen in relation
to the break conditions, take advice on how to answer. In many cases you will not
be under any obligation to provide a response to the tenant and silence may be the
best option. In cases where a response is required any misleading response should
be avoided.
Pia Eames
Associate, Real Estate Disputes Team
T: 0870 763 1350
E: pia.eames@sghmartineau.com
© SGH Martineau 2012
Later this year, colleges will be able to take advantage
of the government’s innovative energy efficiency programme, the Green Deal,
to improve the energy efficiency of their buildings.
The Green Deal effectively creates a "pay as you save" financing mechanism,
which will be available from accredited Green Deal providers, to enable a range
of energy efficiency measures to be installed in homes and businesses at no upfront
cost. Instead, the cost will be paid in instalments through the energy bills in
respect of the property. The Department for Energy and Climate Change (DECC) has
indicated that it will be available from autumn 2012, initially for domestic properties
but subsequently for business premises also.
In essence, the Green Deal mechanism is straightforward. For eligible improvements,
a Green Deal provider will make a finance offer based on an assessment of the estimated
energy savings that will result from the measure, and the likely costs for the installation
work (including finance costs). If the offer is accepted, the payments agreed in
the Green Deal plan will attach to the energy bill of the property and will be paid
to the relevant energy supplier through these bills, who will then reimburse the
Green Deal provider as appropriate.
The fundamental principle underpinning the Green Deal – the so-called “Golden
Rule” - is that energy efficiency improvements to properties should pay for
themselves through the resulting savings on electricity and gas bills. However,
note the word “should”; there is no government guarantee on offer that
this will be the case, and critics have objected to the proposal that assessments
be based on average energy usage rather than actual usage of the occupants in question.
Nonetheless, what opportunities are there for colleges?
Optional energy saving measures
- Student and faculty accommodation
The Green Deal draft regulations define domestic property as “a building or
part of a building intended to be occupied as a dwelling” . Therefore,
colleges are likely to be eligible for the first phase of Green Deal financing,
for their student and faculty accommodation buildings.
Whether or not a building is eligible for Green Deal financing is determined by
a two part assessment process, whereby the fabric of the building is evaluated for
an Energy Performance Certificate (EPC) following which an occupancy assessment
is carried out to determine how occupants use the property to provide an indication
of whether the projections of an EPC are accurate.
Importantly, the Green Deal is not a silver bullet and colleges should still consider
other means of curbing costs, notably educating students about energy efficiency.
Assuming a building is deemed suitable for Green Deal financing, installation works
could have further financial implications in terms of loss of income for summer/term
time lets, particularly where buildings become non-habitable during installation.
- Non-residential campus buildings
DECC has taken an integrated approach to the design of the Green Deal, so that the
scheme is broadly the same for both the domestic and non-domestic sectors. However,
not all properties will adhere to the Golden Rule. For example, although a
college may not find it cost effective to close the whole or part of a building
in order for more substantial energy savings measures to be carried out, it might
find it cost effective to upgrade boilers or fit lighting controls and low energy
lights which will give a much faster return on investment and which better adhere
to the Green Deal’s Golden Rule.
As t he Green Deal assessment procedure for the suitability of non-domestic buildings
is more complex than for domestic properties, DECC have announced a delay to the
use of the Green Deal in the business sector.
Mandatory energy saving measures
Whilst Green Deal financing provides a non-compulsory opportunity for colleges
to attain energy efficiency, amendments to the Energy Act 2011 (the Act) will impose
a restriction from 1 April 2018 on landlords to let properties with energy efficiency
ratings below band E.
Interestingly, the Act imposes a similar restriction on domestic and commercial
landlords. However, until Regulations to clarify the specifics are published, it
is unclear whether landlords who are themselves tenants (under a commercial head
lease) will be in breach of the Act or whether the obligation to make energy efficiency
improvements is one that rests on the owner of the property - the framework legislation
suggests the onus is simply on the ‘landlord’. Nevertheless, once the
Act is in force, a landlord of a domestic property will not be able to unreasonably
refuse consent to energy efficiency improvements requested by his tenant. In this
way, it may be possible that the obligation is passed up the chain. For the sake
of clarity and certainty, leases should be amended so that the obligation to ensure
the building meets the minimum energy efficiency rests with the landlord.
For colleges guaranteeing occupancy of buildings under a nomination agreement the
matter is simple – the duty rests with the commercial landlord.
Interestingly, landlords responsible for buildings falling below the required standard
may continue to let them provided they either: take measures to make improvements
to the building (whether there is a minimum threshold for these is as yet unspecified),
take Green Deal financing, or benefit from the Energy Company Obligation (ECO) which
addresses instances in which Green Deal measures will not work – i.e. where
the cost of improvements outweigh projected energy savings. The ECO is not based
on carbon goals, rather it is intended to target lower income/vulnerable households
or certain property types, for example those requiring Solid Wall Insulation. However,
for older and/or listed buildings, substantial energy efficiency works may not be
possible and the Act provides exemptions where necessary consents or permissions
cannot be obtained. Essentially, this is a dilemma local authorities as enforcers
will no doubt encounter.
Conclusion
The Green Deal is yet to be implemented on a broad scale, and until it
is, concerns over guaranteed savings, which have been widely publicised, will remain
and likely hinder the take up of energy efficiency schemes. This is
a shame, because the scheme is innovative and has the potential to spearhead the
roll out of retrofitted energy efficiency measures across a broad range of buildings
across college estates.
Andrew Whitehead
Senior Partner, Head of Energy & Utilities Team
T: 0800 763 1528
E: andrew.whitehead@sghmartineau.com
Sheiba Brannan
Trainee Solicitor, Energy, Projects and Commerce Team
T: 0800 763 1657
E: sheiba.brannan@sghmartineau.com
© SGH Martineau 2012
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The Education Act 2011:
What does it mean for the relationship between colleges and their employees?
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The Education Act 2011 (the Act) came into force in April 2012
bringing with it a series of changes which will impact upon FE and Sixth Form colleges.
In this article we consider the extent to which one of these significant changes
could impact upon the relationship between colleges and their employees.
Instrument and Articles
Prior to the implementation of the Act, changes to a college’s Instrument
and Articles of Government could only be made with the consent of the Secretary
of State. Consequently, colleges rarely chose to exercise this option, relying instead
upon the standard Instrument and Articles issued by the Secretary of State every
few years.
Now, each college has the power to modify or replace its Instrument and Articles
of Government as it sees fit, provided they include certain prescribed details.
These include a requirement that the governors publish arrangements for obtaining
the views of staff and students on matters for which the governors are responsible,
and a provision that copies of the Instrument and Articles are available to members
of the public, staff and students.
Whilst individualising Instruments and Articles is now an option for colleges, the
Act does not impose any requirement on them to exercise it. Therefore, we anticipate
that many governing bodies will continue to rely on the standard Instrument and
Articles and will conduct college matters much as they have done to date.
What might a change to the Instrument and Articles mean for the employment relationship?
Opting for a bespoke Instrument and Articles could however give a college greater
flexibility in relation to its employment procedures.
For example, the standard Instrument and Articles provide that the selection panel
for the appointment of a senior postholder (other than the Principal) must consist
of the Principal and at least three governors. The panel can recommend the appointment
of a certain individual to the governors, but that recommendation must be ratified
by the governors before the appointment can be made. A college might choose to amend
its Instrument and Articles so as to avoid having to follow this procedure by reducing
the number of panel members required. It might also decide to remove the need for
further approval from the governors altogether. Of course, such measures are designed
to provide a fair and transparent process, and so colleges should give careful consideration
to the implications of amending or removing these procedures from the Instrument
and Articles before any such action is taken.
Similarly, the standard Instrument and Articles provide that vacancies for senior
posts must be advertised nationally. A college may choose to remove this provision,
although consideration should be given as to whether this will impact upon the college’s
compliance with its public sector equality duties.
One provision in the current Instrument and Articles which can cause difficulties
is the limitation on delegation by the Principal (only to senior postholders), which
is often interpreted as meaning that dismissal of a member of staff may only be
carried out by a senior postholder. This provision could be removed from the Instrument
and Articles so that a college has greater flexibility to specify in its employment
procedures who may dismiss a member of staff. The ACAS Code requires only that dismissal
is carried out by ‘a manager with authority to dismiss’ with a right
of appeal to someone not previously involved in the case, although it is good practice
for an appeal to be dealt with by someone more senior within the organisation. This
might mean, for example, that dismissal is carried out by a line manager with a
right of appeal to a head of department or vice principal.
Alternatively, colleges may choose to be more prescriptive as to the employment
procedures to be followed. At present the standard Instrument and Articles provide
that, after consultation with staff, the governors must make rules setting out suspension,
grievance, disciplinary and dismissal procedures. However, the exact procedures
are not specified. A college might choose to specify, for example, that any grievance
brought by a senior postholder must be heard by a certain number of governors.
In reality, few colleges are likely to want to be bound by more onerous processes
under their Instrument and Articles, and will instead choose to rely upon separate
policies which can be more easily amended. Nonetheless, this option is available
should a college wish to consider enshrining robust procedures into its Instrument
and Articles in relation to the treatment of its staff.
Probably the most important point to note is that whenever changes to a college’s
Instrument and Articles are made, the college should conduct a review of its disciplinary
and grievance policies to ensure that they do not place any obligations on the college
which go further than the Instrument and Articles require.
Whether or not many colleges will choose to exercise their newly granted freedom
in order to influence the way in which they are required to deal with their employees
remains to be seen. However, colleges should bear in mind that this option is now
available and, subject to a limited number of restrictions, colleges are, for the
first time, at liberty to govern themselves and their relationships with their employees
as they see fit.
Linden Thomas
Solicitor, Employment Team
T: 0800 763 1326
E: linden.thomas@sghmartineau.com
© SGH Martineau 2012
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Stop Press: SFA Financial Memorandum and Termination Payments
On 1 April 2012 a new Financial Memorandum came into effect between the SFA and
colleges. The new memorandum has been updated to take into account changes made
by the Education Act 2011.
One of the amendments in the new memorandum deals with termination payments. The
old memorandum provided that payments made to employees on the termination of their
employment ‘should normally only be for the purposes of meeting contractual
obligations’. However, the wording of the new memorandum provides that payments
made to employees on the termination of their employment ‘shall only
be for the purpose of meeting contractual obligations’.
Concerns have been raised as to whether this amendment precludes any termination
payments which go beyond an employee’s contractual entitlement. This would,
for example, prevent colleges from making enhanced redundancy payments.
The SFA has confirmed that it was not its intention to stop colleges from offering
enhanced voluntary severance schemes where such schemes provide value for money.
However, when considering offering enhanced severance payments, colleges will need
to show that they can justify such settlements and that the payment is an appropriate
use of public funds.
The SFA did not have sufficient time to consult with colleges before the introduction
of the new memorandum. Feedback is therefore being sought on the version currently
in force and will be taken into account in a revised version which will take effect
from 1 August 2012. Consequently, it may well be the case that the old wording regarding
termination payments will be reinstated in order to avoid further confusion.
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Many colleges have dispensed with retirement ages altogether
since the national default retirement age (DRA) was abolished last year. Others
have kept a retirement age for certain groups of employees, whilst still others
are waiting to see how the law develops in the “no national retirement age”
era. Most of you reading this bulletin will be aware by now that the Supreme Court
handed down an eagerly anticipated decision dealing with this issue on 25 April
in the case of Seldon v Clarkson, Wright and Jakes. The problem is some
commentators are saying it makes forcible retirement more difficult, others that
it makes it more straightforward. So which is it?
This is most definitely one of those times when reading the court’s decision
is likely to make things more confusing. As is often the case, it leaves many key
questions unanswered. What do we now know?
- A fixed retirement age is, of course, direct age discrimination;
the issue to focus on is whether it is “a proportionate means of achieving
a legitimate aim”.
- This means first of all that a retirement age must be designed to
achieve “social policy” aims - workforce planning, keeping junior staff,
avoiding the often undignified alternative of performance management, and achieving
a balanced and diverse workforce. These are fairly broad categories, but the case
does mean that anything outside of these parameters will not suffice.
- This isn’t a labelling exercise. You would need to be able
to produce evidence that this is an aim which makes sense in your particular context.
Easy example: if you have no evidence of difficulty in keeping junior staff, that
won’t be a legitimate aim for you.
- Once you’re satisfied your retirement age is trying to achieve
the right things, the next question becomes whether the particular age you’ve
chosen is “appropriate” and “necessary” for achieving that
goal. That’s where it becomes difficult. What age do you pick?
- It’s clear from Seldon that prior to its abolition
in April 2011 the national DRA was a significant factor supporting an employer’s
decision to pick age 65. The absence of a national DRA portends difficulty for employers
whatever age is chosen in the post-April 2011 world.
- The Supreme Court also said you have to consider other options. This
might mean other ages than the one you’ve chosen, though except in certain
manual jobs it is going to be difficult to get evidence of why a particular age
is required.
- It will also mean looking at whether alternatives to retirement –
such as offers of flexible working or alternative roles – would be equally
effective, given that they are likely to have less of an adverse impact on staff.
Trying those kinds of arrangements first, and then weighing up a fixed retirement
age if they don’t work (for example if you start to encounter problems in
retaining junior staff), is likely to be the best evidence you could hope for if
you find yourself in Tribunal explaining a decision to enforce a retirement.
In summary, Seldon has probably made it more difficult to force employees
to retire, not least in the short term because of the considerable publicity the
case has generated. But don’t write off the possibility of a fixed retirement
age altogether, particularly if other measures don’t deliver a balanced workforce,
staff retention, effective planning and the like. And if you do re-examine the retirement
option, make sure it’s more than a tick-box and labelling exercise. Then,
just maybe, retirement ages won’t be ancient history after all.
David Faulkner
Partner & Head of Employment Team
T: 0800 763 1385
E: david.faulkner@sghmartineau.com
© SGH Martineau 2012
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© SGH Martineau 2012
The bulletin contains a summary of complicated issues and should not be relied upon
for specific matters. You are advised to take legal advice on particular problems.
Please contact us and we will
be happy to assist.
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