Last reviewed 8 November 2013

David Brierley looks at some recent issues in employment law of interest to those working in education.

Data protection guidance

The Information Commissioner has published a Code of Practice on dealing with requests from individuals for personal information under the Data Protection Act 1988. Codes of Practice do not have the force of law, but they set out good practice as well as useful practical information. The Act gives individuals the right to know:

  • what personal data is held about them

  • why it is held

  • to whom it is disclosed.

Employers are required to provide this information if the individual makes a subject access request. Information is personal information if it relates to a living individual who can be identified from it.

A subject access request must be made in writing, but there is no mandatory form. A fee of up to £10 can be charged for dealing with a request, which must be responded to within 40 days. Some personal data is exempt from subject access and so cannot be obtained through a subject access request, either because of the nature of the data or the likely effect of its disclosure.

One exemption applies to confidential references. The employer providing the reference is not required to disclose them. There is no exemption for employers receiving a reference, but there may be some confidentiality issues. If the reference contains personal data about the referee, his or her consent to disclosure should be requested.

If the referee objects, the Code of Practice advises that the relevant considerations over disclosure include:

  • any assurance about confidentiality given to the referee

  • his or her reasons for withholding consent

  • the likely impact on the requester and his or her interest in establishing the reference is true and accurate

  • any risk to the referee from disclosure.

Another exemption is personal data processed for management forecasting or planning, such as reorganisation plans. The employer is not required to disclose this information in advance of a formal announcement to staff. There is also an exemption for personal data, recording the employer’s intentions in negotiations with the individual, or information covered by legal professional privilege for legal advice and proceedings.

Compensation for the manner of dismissal

A 2001 House of Lords ruling answered a difficult legal question about dismissal. Can an employee who is unfairly dismissed claim compensation for damage or loss caused by what is described as "the manner of dismissal”? In that case, the claimant was summarily dismissed in a way that damaged his reputation and made it particularly difficult for him to find new employment. He made an additional claim for damages resulting from the manner of his dismissal, which the House of Lords rejected. A dismissed employee cannot claim additional damages for loss suffered from the manner of the dismissal.

In a case earlier this year, Monk v Cann Hall Primary School & another [2013] EWCA Civ 826, where the claimant was an administrative assistant, the Court of Appeal applied the House of Lords ruling. After a reorganisation, the claimant was made redundant, with a 31 August termination date. Term ended on 18 July and at 8.30am on 10 July the chair of governors came into school and told her that the governors had decided the previous night that she should leave immediately. She was told to clear her desk straight away, hand over her school keys and pass, and was then publicly escorted from the school. No reason was given, other than that it was in the best interests of the school.

Her unfair dismissal claim was settled, as were defamation proceedings against the council, the Head and three governors, where she alleged that her removal from school amounted to a statement that she had committed gross misconduct. She also made a High Court damages claim, including compensation, for the humiliation of a public removal and for the psychiatric injury she suffered as a result.

The High Court dismissed her case saying that it fell within the damages exclusion in the House of Lords decision. Damages cannot be recovered for the consequences of, or the manner of, a dismissal. The judge decided that dismissal occurred on 10 July, even though the termination date was 31 August. Therefore there was no compensation because the injury that she was complaining of was caused by the dismissal on 10 July.

The claimant appealed to the Court of Appeal. She argued that an employee can sue for damages for breach of any obligation by the employer, which is independent of a wrongful or unfair dismissal claim. She argued that her treatment on 10 July was not an integral part of her dismissal, which occurred on 31 August when the dismissal notice took effect. Her removal was an incident during her employment, not at its termination, therefore it was not related to the dismissal. The Court of Appeal agreed that she had an arguable case and she was allowed to continue her claim.

Legal arguments aside, this removal from school had a devastating impact on her and it underlines the importance of treating all dismissals, including "non-fault” dismissals, such as redundancy, as sensitively as possible and with care.

Reinstatement/re-engagement

In unfair dismissal cases, the successful claimant may request either reinstatement to his or her old job or re-engagement to another post by the employer. Tribunals have the discretion to make a reinstatement or a re-engagement order, taking into account a number of factors, including whether it is practicable for the employer to comply. Only a small number of such orders are made.

In a case this year, Oasis Community Learning v Wolff [2013] UKEAT/0364/12/MC, the employment appeal tribunal (EAT) upheld a re-engagement order, placing the claimant at another school run by the respondent company.

The claimant was Learning Director of Maths at one of the company’s schools. He was suspended following allegations about his teaching style with difficult pupils and was then dismissed. An employment tribunal ruled that he had been unfairly dismissed and made a re-engagement order for him at another school, where there was a vacancy for a maths teacher.

The company argued that neither a reinstatement nor a re-engagement order should be made because it was not practicable to comply with it. One of its HR officers claimed that, during the tribunal proceedings, the claimant had harassed the company and its employees with aggressive correspondence, making untrue allegations, including fabricating evidence. He had also complained to the regulatory body for academies, the Young People’s Learning Agency. The company argued that relationships had broken down and re-employment was not an option.

In particular, the HR officer said that it would not be possible for anyone in the department to manage him. The company added that the schools it managed were failing schools and the teacher/management relationship was critical. The ruling would mean it having to engage an employee it could not trust to obey reasonable instructions, with the consequent risk to the interests of vulnerable pupils. It was felt that the claimant may be seeking re-engagement just so that he could apply for jobs while in employment, rather than when out of work. The company believed it was wrong that he should be re-engaged just to vindicate his reputation.

The tribunal and EAT rejected these arguments pointing out that disputes and allegations and counter-allegations were not uncommon in unfair dismissal cases. There is a significant difference between how parties conduct themselves during legal proceedings and how they relate to each other in subsequent employment. The claimant had given an undertaking not to continue with his complaints against the company and the HR department, and he gave specific assurances about his relationships with management. The difficulties raised by the company did not make his engagement at the other school impracticable. This was a different school, with new colleagues and no history to live down.