Q&A

Q I am the bursar of an independent school. Recently, the governors attempted to make me redundant. I am aged 59 and it would have been very difficult for me to find alternative employment. With the aid of an ASCL field officer, I successfully appealed against this decision, on the grounds that numerous procedures had not been correctly followed and that I had been discriminated against on the grounds of my age. I would now like to enter into a new contract with my employer which protects my position either by having a fixed-term contract up until the age of retirement or by having a notice period in excess of one year.

A Since you have a long period of continuous service, we would advise you not to terminate that contract and enter into a new fixed-term contract - into which undoubtedly the employer would wish to insert a break clause thereby entitling it to terminate on notice anyway. It is also highly unlikely that an employer would agree to a notice period in excess of 12 months. This is almost certainly more than the head enjoys. A notice period of six months is the most that you or ASCL are likely to persuade your employer to accept.

Q I recently employed a support staff member through an agency on a temporary contract. This person has, while working for us, applied and been accepted for another advertised post within the school. The agency says that we must now compensate them in accordance with their terms and conditions by paying them a 19 per cent introduction fee. Since the post was externally advertised, the agency worker would have been free to apply for it without going through the agency, and we do not feel that we should have to pay this introduction fee.

A Unfortunately, having taken on an agency worker in agreement with the terms and conditions, you are obliged to pay this introduction fee, which is intended to cover situations such as this. It is frequently the case that agency workers do apply for posts within the organisation in which they are working under a temporary contract and, of course, the agency will then lose out on future fees, so this sort of term within the agreement is intended to compensate them. Such clauses are usually upheld by the courts and the agencies will not hesitate to issue court proceedings.

Skewed gender equality advice?

Q In the May Leader page 9, the article on the new gender equality duty advised that "statements of commitment to equality should include....objectives for future performance" and then gives some examples, including the achievement of a certain proportion of any group (for example, women) in senior posts. However this can only be achieved if a candidate's membership or otherwise of that group is taken into account when making appointments.

This seems to be 'positive discrimination' and therefore at odds with current legislation. I understood that employers should be reinforcing the principle that a person appointed should be the best candidate for that post, regardless of age, gender, race etc. There seems to be a tension between this principle and the requirements of the gender equality scheme. Which takes priority?

A You are right to raise the issue, and quite correct that positive discrimination has no place in British law. However, organisations do have a duty to promote equal opportunities. The way the duty works is this. If the balance of men and women coming forward to take advantage of the opportunities that the organisation offers does not reflect the balance in the workforce or national statistics, the employer has a duty to consider what can be done to redress this.

This may mean considering policies that make it easier for people of the under-represented gender to take up this opportunity, for example, job-sharing. It is good practice to set realistic targets and to monitor the progress. If your first adjustments don't work, then your review will focus on considering other adjustments.

Of course, when you are dealing with small numbers it is difficult to decide whether under-representation is a product of discrimination or is statistically random. However, if over, say, a ten-year period when several senior leaders have come and gone not one has been a woman, it should at least give rise to consideration as to whether the duty is being observed.

Stumped by squatter's rights

Q For approximately five or six years, our school has allowed the local village cricket club to use our cricket pitch on a Sunday, when we do not hold matches ourselves. This is a facility which we are pleased to afford to the local community because clearly it enhances relationships between the school and the village. However, one of the governors has heard that if we continue to allow them to do this free of charge after a while they could acquire ownership of the land under Squatter's Rights. Is this correct?

A Squatter's Rights, or more properly 'adverse possession', are acquired if one person occupies land as a trespasser for a continuous period of ten years (until recently this was 12 years). In your situation therefore it seems highly unlikely that they would be able to claim adverse possession because first of all they are not trespassers, they are there with your permission, secondly, they only use the property and land once a week and thirdly, they only use the land during the summer cricket season. However, it might be wise to have a formal written agreement with them known as a 'license' which grants them permission to use the land once a week on a Sunday, during the cricket season without charge but that such permission may be withdrawn on, say, one season's notice.