Steady at the helm

Heads coming into a new school will inevitably want to make their mark but all heads are advised to take extreme care when they start 'reorganising' the existing senior team.

Employment law applies to all businesses, including schools, and heads like all CEOs are advised to keep in mind the maxim: "Be you never so high; the law is above you."

The grounds for removing staff lawfully are limited to:

• capability

• conduct

• redundancy

• where to continue to employ the person would result in a breach of statute (eg where a person is banned from driving but their contract is to drive lorries)

• another substantial reason (eg where the employee refuses to accept new contractual terms of employment)

If a dismissal is not for one of these reasons, it is either wrongful or unfair. If it breaches the discrimination laws, an employee has rights that can be enforced through employment tribunal or the courts. Remedies may include compensation or an order to re-instate.

Wrongful dismissal is essentially dismissal with no or insufficient notice. Unfair dismissal is dismissal on any other grounds than those above.

Once a prima facie case has been made out by the claimant, the burden of proof shifts to the employer to prove that the dismissal was fair, that it followed a fair procedure and that it was equitable.

Constructive dismissal

What if a staff member resigns? Even here, employees can make a case for unfair dismissal, if they can establish that it was 'constructive dismissal'.

A case for constructive dismissal can be made if an employee terminates the contract because of the behaviour of the employer.

However the question is how badly an employer has to behave. If the employer breaks an express term of the contract, by unilaterally reducing pay for example, and the employee then resigns, with or without notice, within a reasonable time, this is constructive dismissal.

An employee can also claim constructive dismissal for the breach of implied terms; for example, failing to provide a safe working environment, changing the place of work, imposing a disproportionate disciplinary penalty, or using foul and abusive language towards an employee (as happened in a City law firm).

It also has applied to cases where an employer told the employee that unless she resigned she would probably be dismissed, and where an employee was required to cease what he was doing and take up a new role.

Most of these examples are instances of 'a fundamental breach of the trust and confidence that should exist between employer and employee' - so is constant criticism and abuse. Individual incidents do not necessarily constitute a breach of mutual trust and confidence, but repeated occurrences can add up to one.

What warning will an employer get? Under the new statutory procedures, when the member of staff initiates a grievance procedure (access to employment tribunal is effectively barred unless this route has been explored), it is a signal to get advice quickly. See page 11 for more on the new grievance procedures.

Vicarious liability

The law on dismissal is not the only hazard, however. A recent case in the Court of Appeal has established, although with some hesitation, that a breach of the Harassment Act can lead to a claim against the employer under vicarious liability.

This holds that an employer is liable for the actions of employees unless the employee is acting entirely outside his terms of employment.

Therefore, if a departmental manager is excessively critical, isolates the employee, treats him or her differently and unfavourably, is rude and abusive and imposes unrealistic targets, then he or she creates a liability for the employer.

What about deciding that no deputy head is needed and declaring an unwanted deputy redundant? If that deputy is the only one, there is a further hazard.

Only a deputy can deputise for the head. Therefore any responsibility that belongs by statute to the head alone, exclusion for example, will only be possible if the head is present.

Before any dismissal, heads should seek advice. If LEA advice is ignored or not even sought, the LEA is entitled to refuse to pay any costs the school incurs as a result.

If using an alternative personnel consultant, schools should be sure that the consultant will reimburse costs if the LEA refuses to pay.

Some heads may find their new school in a desperate situation. Desperate situations call for desperate measures, but not unlawful ones.

It may still be prudent to see what professional development can do to improve things before resorting to extreme action.

By Richard Bird, SHA's legal consultant