Last reviewed 17 September 2012

David Brierley reports on the latest legal changes affecting the education sector.

Employment tribunals

A number of changes to employment tribunal procedures are now in place. These aim to encourage earlier resolution of disputes, reduce the number of tribunal claims, and deal with those claims more efficiently.

Since 6 April, the length of the unfair dismissal qualifying period has increased from one year to two years. The Government says this is to give employers more confidence to hire staff.

Other key changes made to tribunal procedures include:

  • increasing the maximum limit for deposit orders to £1000 (tribunals can require a claimant to pay a deposit in order to continue with a case judged to have limited prospects of success)

  • increasing the maximum limit for costs awards to £20,000

  • allowing tribunal judges to sit alone in unfair dismissal cases

  • giving judges discretion to direct either party to pay witness expenses

  • having witness statements taken as read rather than witnesses reading them out aloud.

Some changes that require primary legislation will be introduced when parliamentary time allows. These include new early conciliation arrangements. All tribunal claims will be sent to the Advisory, Conciliation and Arbitration Service (Acas) before they are lodged with the tribunal so that the parties can be offered conciliation. This is to encourage early resolution of cases. In addition, tribunal judges are to have a discretionary power to levy a financial penalty on employers found to have breached employment rights. There will be the option for a new system called rapid resolution for straightforward claims.

Compromise agreements will be renamed “settlement agreements” to encourage greater use and there are proposals to simplify their use.

The Government has also confirmed that fees for employment tribunal cases will be introduced in the summer of 2013. The stated intention is to share the cost of tribunals between the taxpayer and claimants, and to encourage early settlement of disputes. For Level 1 tribunal claims (straightforward cases) there will be a £160 issue fee and a £230 hearing fee. For Level 2 cases, which include unfair dismissal and discrimination claims, the fees are £250 and £950 respectively. In multiple claims, the fees are linked to the number of claimants. There will be a fee remission scheme and claimants receiving Jobseeker’s Allowance or similar benefits will get full remission and pay no fee. Full or partial remission will also be available to claimants with low disposable incomes.

Health and safety

The Government has published a progress report on the implementation of health and safety reforms. These are the changes recommended in the Common Sense, Common Safety report by Lord Young in 2010 and the 2011 Löftsted review — Reclaiming Health and Safety for All. A number of these and further proposed changes are relevant in the education sector.

In April 2012, changes were made to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) to increase the trigger point for an employer to report an accident at work from three days to seven. The Government is now consulting on further changes to simplify RIDDOR requirements, which would come into force in October 2013.

There has also been a review of the Electricity at Work Regulations 1989 and, while this has not resulted in new legislation, the Health and Safety Executive (HSE) published new guidance in April 2012 which states clearly that it is not the case that all portable electrical appliances in a low-risk environment (such as an office) require an annual portable appliance test.

One of the recommendations in Common Sense, Common Safety was that the process for taking pupils on school trips should be simplified. Revised and considerably shortened health and safety guidance for schools was issued in summer 2011, together with an HSE High-level Statement on the application of health and safety law to school trips. Concerns have been expressed about this reduced guidance, and similarly about the introduction of a model HSE classroom risk assessment, in that this did not identify all the risks present in classrooms and classroom activities. As a result, modifications were made, including a new name — Health and Safety Checklist for Classrooms — and an introduction which states: “This checklist will help users to quickly identify any areas of concern or risks to those using or working in the classroom. Using it is not mandatory but doing so will give users and employers confidence that sensible precautions are in place.”

Another recommendation to abolish the Adventure Activities Licensing Authority has been “paused”. The Adventure Activities Licensing Regulations 1996 cover caving, climbing, trekking and watersports, and require adventure activity providers to hold a licence to confirm they have been externally inspected and meet acceptable safety standards. This scheme, introduced after the Lyme Bay drownings in 1993, provides schools with an assurance of safety standards.

Supervision in PE

In the case of Hammersley-Gonsalves (A Child by his Litigation Friend T Gonsalves) v Redcar and Cleveland Borough Council [2012] EWCA Civ 1135, the Court of Appeal has given a ruling on a compensation claim by a pupil injured during a golf lesson at a sports academy.

The pupil, then aged 11, was seriously injured in the accident. As his class of 22 pupils was walking to the school field for a golf lesson, he suffered a broken jaw and smashed teeth when he was hit in the face by another pupil’s golf club. The group had completed six indoor golf lessons and for the seventh lesson the PE teacher had created a golf course in the school grounds. The accident occurred when one of the pupils put his ball down and swung his club at it. The teacher was at the back of the line of pupils and did not see this happen.

The County Court judge ruled that there was inadequate supervision and the teacher was negligent in failing to keep every pupil in the crocodile of boys in his line of sight. The pupil was awarded £21,000 damages.

The council appealed and the decision was overruled by the Court of Appeal. The Court agreed with the council that it was unrealistic to expect one teacher to keep every pupil in direct sight at all times, stating that teachers “cannot be expected to see every action of every pupil”. The Court held that additional supervision was not required as the pupils were mostly 12-year-olds and the nature of the activity did not warrant it. The teacher’s evidence was that he instructed them not to use the clubs or hit anything until told to do so, and to walk outside in single file. The incident was wholly unexpected.