Advice from the hotline...
The ASCL hotline is a completely confidential service available to answer members' questions on issues that arise in school/ college. The questions and answers below are based on real calls to the hotline. To protect confidentiality, all scenarios have been anonymised. If you need advice on a personal or professional issue, call 0116 299 1122 and ask for the hotline officer.
Alleviating health concerns
Q A member of staff told me that he has been diagnosed with a degenerative illness affecting his nervous system. At the moment he is functioning well and his condition has had no effect on his attendance or performance in the classroom. We want to make all possible adjustments for him as time goes on to enable him to continue working and we are happy to work with his medical advisers and with occupational health.
However, there may come a point when he can no longer carry on. If our view of when this time arrives coincides with his, we can make appropriate arrangements but what if he wants to carry on working when we think that it is time for him to stop? What will be the legal position?
A This is a very difficult time This is a very difficult time Afor him and indeed for you. If he is insistent that he wishes to continue to work when you feel that he is no longer able safely and effectively to carry out the duties in his job description, you will need to obtain a medical report from a suitably qualified expert. This medical expert would usually be of consultant status.
If the expert's report is that he is no longer capable of performing his duties you may safely terminate the contract of employment, with notice, on grounds of medical incapacity. You will need the employee's consent to obtain such a medical report but if it is refused you may form your own view as to his fitness to continue. We would also advise you to work closely with the local authority and with occupational health.
Permission to board?
Q The working time regulations affect the staff where I work as we are a boarding school. Can you clarify matters with regard to staff being on call or on duty at night and at weekends? What rest breaks are they entitled to and can they opt out of their right to rest periods between working days? Should all these matters be spelled out in their contracts or in a letter of appointment?
A Boarding school staff are covered by the Working Time Regulations 1998 S1 1998/1833. Under these regulations workers have the right to: a daily rest period of not less than 11 consecutive hours - Regulation 10; an uninterrupted weekly rest period of not less than 24 hours - Regulation11; and a rest break where the working day is more than 6 hours long - Regulation 12.
If staff are on call in the workplace, that will constitute working time. Night duty will certainly constitute working time as the individual is charged with specific tasks and responsibilities at this time.
These are your employees' rights and employees cannot opt out even if they wish to do so. This is because the directive was introduced as a health and safety measure.
It would certainly be good practice to incorporate the entitlement to rest breaks into the contract of employment but they are in any event a statutory right so employees are covered by the regulations in any event.
Employer/employee responsibilities
Q I hear a lot about the employer's duty of care and I am never quite sure what this means. Please could you explain what obligations and duties are owed by an employer to staff - and indeed, what duties the employee owes the employer?
A Essentially, this amounts to a duty to ensure that the employee is not injured in the course of his/her employment and that there are no breaches of the Health and Safety at Work Act 1974 - the statutory duty - or the common law duty of care established by case law. You must ensure that the employee has a safe place of work.
It also extends to ensuring, amongst other things, that the employee is not overworked, and is not subject to bullying, discrimination or harassment by work colleagues, students or parents. The law also says there are certain obligations and duties owed by an employee to their employer, even if the contract does not mention them. These include:
do what a reasonable employee would do in any situation
be honest
work with reasonable care and skill
look after the employer's property if using it
not compete in business against the employer while still working for them as an employee
carry out and follow orders of the employer, as long as they are legal
not disclose the employer's confidential information
not take bribes
disclose wrongdoing (does not include spent convictions). But, the employee must disclose wrongdoing by other employees, even if this will incriminate them
be prepared to change when the job changes, for example, if computers or other machinery are introduced to help the employee do their job
give any inventions to employer that are developed by the employee during his/her employment
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