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.

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No smoke without fire...

Q Our 11-16 school building is completely non-smoking and there are clear signs throughout to indicate this.

Three members of staff are confirmed smokers and stand just outside the rear entrance every break time and lunchtime smoking.

They insist that for this reason they are unable to participate in any other activities during these times and one has asserted that her addiction constitutes a disability and therefore we must make reasonable adjustments. In addition to the hazards of passive smoking, I am concerned at the message it sends to students and passers-by. Where do we stand?

A On its own, smoking addiction does not constitute a disability under the Disability Discrimination Act 1995. Therefore there is no obligation to consider reasonable adjustments and staff should not be excused from activities during break times. The situation may be different if the staff member had long-term health complications caused by smoking, such as lung cancer.

You may wish to draw up a smoking policy for all staff. Consideration could be given to an outright ban on smoking within so many meters of the rear entrance, or on all school property (NHS policy) and (if being draconian) at all school times.

A compromise would be to erect smoking shelters and allow smoking only in those areas. The law does place physical restrictions on such shelters and their location (see www.smokefreeengland.co.uk, www.smokingbanwales.co.uk, www.clearingtheairscotland.com and www.spacetobreathe.org.uk for Northern Ireland). If properly placed, shelters could place smokers out of sight and eliminate the risk to others.

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Difficult and unmanageable

Q I am an assistant head and one of the staff who reports to me is very difficult to manage. He doesn't work well with other members of the team and he challenges everything that is suggested. I'm frustrated by the fact that the other team members never say anything to him about it. Is his behaviour enough for me to go to the head to ask her to discipline him? I'm fed up with it and it's spoiling my enjoyment of my job.

A A work place is made up of a variety of personalities, some of whom will be easier to work with than others. Sometimes a manager has to be robust and take the rough with the smooth. If one staff member does not gel with the others then perhaps a direct, informal chat with that person (or the others), emphasising the impact of the behaviour, may be enough to diffuse the situation.

In terms of disciplinary action, if the awkward member of staff is performing his/her role competently then it would be difficult to justify this route. If he does not work well with others and it impacts on the overall performance of the department or school then an investigation may be necessary to decide whether aspects of his behaviour genuinely should be considered for disciplinary action. It is important to treat all employees fairly and consistently.

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Changes to employment shift patterns

Q As business manager, I would like to change the shift pattern of the premises officers whom I manage in order to accommodate growing demand for extended services. Can I do this even though they are technically employed by the local authority? What should I do in terms of consultation and reasonable notice? Are there alternatives available such as bringing in other staff to work at weekends or in the evenings?

A A school, like any business, has to change with the times, and as line manager you are entitled to initiate this move. However, a change to an employee's shift pattern does mean a change to the terms of employment and if not done correctly could result in a breach of an employment contract justifying a constructive dismissal.

Hopefully, the premises officers will agree to the change. If so, an agreed time frame should be approved by all. If not agreed, the employment contract may allow such a change by way of a 'flexibility' clause. Regardless of whether such a clause exists, an employer should go through a reasonable period of consultation with affected employees, long enough to be considered meaningful.

The need to make the change should be explained and the reasons for any employee objections considered. If the objections are quite genuine and relevant, other reasonable alternatives (such as bringing in other staff) should be considered and pursued.

If no reasonable alternative exists then there is the option of dismissing then re-engaging the employees on amended contracts. In this case, the notice in the employment contract should be given. This option does carry an element of risk because a dismissed employee may bring a claim for unfair dismissal, in which an employment tribunal will decide whether the school acted reasonably or not.