Leader magazineASCL - Association of School and College Leaders

Employment law

Protection from harassment law

The case of Majrowski in 2006 established that the Harassment Act could be applied to employment situations. This meant that an employer could be vicariously liable for not preventing an employee from harassing another staff member.

In a recent case, however, the Appeal Court laid down that for a harassment case to succeed "the touchstone...will be whether the conduct is of such gravity as to justify the sanctions of the criminal law." This should take into account that the maximum penalty for harassment is six months imprisonment.

The courts should not find harassment where what was on display was "bad-tempered conduct which, though unpleasant, comes well below the line of that which justifies a criminal sanction."

This should relieve school and college leaders of some worries. The threshold of a criminal level of harassment should be high enough to bar virtually all school disagreements from action on this ground.

Discrimination questionnaires

Employment tribunals have tended to take a 'tick-box' approach when employers fail to respond to a discrimination questionnaire, but this was rebuked in a recent decision.

NATfHE, as it then was, was accused of racial discrimination in failing to provide legal support for a member. However, the computer system for recording member support did not have a race-monitoring facility.

The ruling said that tribunals should consider all the circumstances of a case before concluding that a failure to respond to a questionnaire was proof of discrimination.

Schools generally do record information on staff and pupils by race since racial monitoring is part of employment, and, in the case of pupils, of disciplinary and performance data.

This case should not be taken as carte blanche to ignore requests to respond to questionnaires but if there is a legitimate reason why records are not kept, this case provides some reassurance.

Fair treatment for part-timers

The decision of Manchester City Council to solve a problem of a reduction in adult education work by cutting part-timers back to 30 per cent of their time has been found unlawful, even though their union had negotiated this and it was specifically mentioned in their contracts.

When reductions had to be made in staffing, the City Council allocated work on the basis of their contracts. For part-time lecturers this meant not the hours they had previously worked but down to one third of those hours. The EAT had no hesitation in ruling that this was in clear breach of the Part Time Workers Directive 98/23/EC and the UK Regulations 2000.

This will have considerable significance as falling rolls hit, particularly if there is a 'multiplier effect' from student choice of diplomas. The basic rule is that one cannot treat part-time staff differently than full-time.

How long does liability last?

An accident may have long-term effects that are not foreseeable at the time of the accident. If a long-term effect follows an accident, is the employer still liable? The House of Lords has ruled that it is.

The Lords found that once the employer had been found negligent in a worker's initial accident, it also became liable for his subsequent depression, in so far as it was related to the accident, and so also liable for his suicide as a result of the depression. This was despite the fact that six years passed between the accident and the suicide.

This places a further pressure on employers to be careful for the safety of their employees. While suicide is an extreme case, the basic principle - once liable, always liable - is one which may extend the costs of negligence beyond a foreseeable horizon.

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