Leader magazineASCL - Association of School and College Leaders

Advice from the hotline...

Ready for your close up?

Q We have photographs of all the students on a computer. One of the deputy heads has downloaded these to the mobile phone issued to him by the school, in order that he can easily identify all of the students. He has also used the school mobile phone to take photographs of students in situations where it maybe necessary to discipline them. One student in particular has taken grave exception to this and had words with the deputy about it. The deputy now wishes to take disciplinary action against the student but I am not sure where we stand in terms of the law and whether the deputy's actions can be considered reasonable.

A Photographs are data and as such are covered by the Data Protection Act. The Data Protection Act enunciates a series of data principles, one of which is that information must be processed fairly and lawfully. The student or his parents could almost certainly make a complaint to the Information Commissioner that by downloading photographs from the school computer to the mobile phone and by photographing students for disciplinary purposes, the data is not being processed fairly and lawfully. The deputy head is also placing himself in a vulnerable position with regard to complaints being made about him. If the school does not already have one, it should have a policy dealing with data protection and these points should be included in it. In the circumstances it would not seem appropriate to discipline the student.

Seeking legal representation clarification

Q I am a headteacher and currently involved in a disciplinary process against one of the teaching staff. A serious allegation has been made regarding inappropriate conduct by him with a female student. The member of staff belongs to a union and the union has indicated its intention to arrange for the member of staff to be represented by a solicitor in the internal disciplinary proceedings. My understanding is that there is no right to legal representation by a solicitor in internal proceedings. Is this correct?

A Historically it has always been the case that employees were not entitled to legal representation by solicitors in internal disciplinary proceedings. However, there have been two recent cases which have changed the landscape slightly and indicated that in certain circumstances it would be appropriate for employees to have a solicitor present.

The courts have said that if the possible outcome is that the employee is dismissed and the nature of his/her employment is such that it would be diffcult to then find employment in that field, the consequences are so serious that there are human rights implications. In this situation, s/he ought to be represented by a solicitor. In another case it was held that if the possible result of the disciplinary process might also be criminal charges, again it would be appropriate for the employee to be legally represented by a solicitor.

Applying the case law to the situation with which you are faced, we have to advise that it would be appropriate for the member of staff to be legally represented by a solicitor.

Adding up the cost of redundancy

Q I am a senior teacher in the independent sector with a split role - I teach maths and am also responsible for various administrative duties within the school. The split is roughly 50/50. I have recently been informed that the maths role is to be made redundant but the administrative role will continue. Therefore I am keen to know, if I am asked to continue working but part-time, can my employer refuse to offer me a redundancy payment?

A Reducing your full-time role to a part-time role without your consent would be a fundamental breach of your contract and would entitle you to claim constructive dismissal.

Your employer could, however, state that your full-time role is redundant and offer you the post of part-time employment as an alternative option to redundancy. Of course, you would not be obliged to accept this offer and could reject it on the grounds that it is not suitable alternative employment. In that situation you would still be entitled to a redundancy payment based on previous full salary.

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