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.

Taking a leave of absence?

Q I have responsibility for support staff in my college. One member of the administrative team is returning to work shortly after being away ill for eight months and she has informed me that she is due all of her annual leave. Is that correct?

A The issue of how to manage annual leave and sickness absence is a difficult one for employers, not helped by a recent ruling by the European Court of Justice and some House of Lords decisions. They have indicated, among other things, that paid holiday entitlement does accrue during sickness absence, regardless of how long the employee is off sick, and that there is nothing to prevent a worker from taking paid holiday leave while on sick leave.

However, some questions remain unanswered - such as whether employers can force employees to take annual leave when they are sick and if an employee does not specifically ask for holidays during sick leave, whether the entitlement is lost at the end of the holiday year.

The European court ruled that workers must be allowed to accrue annual leave during sick leave under the EU Working Time Directive. It also ruled that if workers are prevented from taking that leave during the period of sick leave they must be allowed to take it at some time, even if it is in the following leave year.

However, this conflicts with the UK's Working Time Regulations 1998 which do not permit employees to carry over statutory leave entitlements into the next year. The House of Lords was expected to address this conflict of law but unfortunately has not done so.

In light of this uncertainty, it is advisable to take legal advice from your human resources provider on individual cases as this remains a complex area of law.

Concerns over negligence

Q As deputy head, I am very concerned for the welfare of the headteacher. The governors are always arguing and he is becoming seriously stressed as a result. He has already had several periods of sick leave and I know that he has passed on to the local authority a written warning from his doctor saying that the situation may result in psychiatric injury to him. It's beginning to affect me now as well. I can't believe that the authority can just ignore all this. Can they?

A No, they can't. The High Court has very recently ruled that a local authority failed in its duty to protect a headteacher and to intervene when the actions of the governors created problems in the school's governing body. The headteacher's claim of negligence succeeded because the authority had a duty to take action once it had been made aware of the risk of stress-induced psychiatric injury.

Where there is a serious breakdown in school governance, the School Standards and Framework Act 1998 gives a local authority the power to issue a warning notice, then to appoint additional governors and then to replace the existing governing body with an interim executive board.

Employers disregard at their peril clear warning signs, such as explicit concerns expressed by occupational health advisers. While indications by an employee that s/he is feeling stressed do not in themselves create liability, they should alert the employer to the possibility that psychiatric injury, such as long-term depression, may follow.

Dismissing constructive dismissals

Q We are dealing with a member of staff who says that he has been badly treated by the school and that he is being advised to resign and claim constructive dismissal. As head, I have reviewed the situation and decided that the member of staff had perhaps suff ered from what had happened and we took some steps to make amends. Now that eff orts have been made to put things right, can we be confident that he will not be able to claim constructive dismissal?

A No, you can't rely on the actions taken to remedy matters. If the member of staff was poorly treated, that cannot be undone. In a recent case a university professor's marking of exam scripts had been criticised and the papers had been re-marked. Even though an inquiry was held, which exonerated him before he resigned, he successfully claimed constructive dismissal.

The test for constructive dismissal is whether there has been a fundamental breach of contract, not whether the employer has behaved unreasonably. Once a contract is fundamentally breached, the employer cannot remedy it by trying to put right their own wrongdoing.