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Education - Academies Briefing Autumn 2019

  • United Kingdom
  • Education - Briefings

27-09-2019

In this issue:

ESFA guidance for academies on setting executive pay

Introduction

The issue of senior pay in the education sector has been a topical one for some time now. Initially the media interest focussed on higher education and, in particular, the issue of Vice-Chancellor pay. However, more recently the attention had turned to the issue of senior pay in academies, following a series of letters on the topic from the Education and Skills Funding Agency (ESFA). Indeed, in the last 18 months a total of 213 academy trusts have been asked to justify high salaries and, according to the Department for Education, 51 trusts have revised down executive salaries.

In July 2019 the ESFA followed up the previous letters by publishing new guidance to support academy trusts in making decisions about executive pay. The ESFA states that whilst there is no single approach to pay that will work for every academy trust, the guidance - “Setting executive salaries: guidance for academy trusts” - sets out key factors that should be used by boards when setting or reviewing executive salaries, so they are set at “fair, reasonable and justified levels”.

The guidance is for trust boards, chairs of trustees, academy remuneration committees, chief financial officers and accounting officers/chief executive officers. In its introduction it says that although it is essential that the best people are employed to lead academy trusts, at the same time, it is important that their salaries can be justified and are in the best interests of the charity, reflect the individual's responsibilities and demonstrate value for money. Furthermore, whilst academy trusts are free to set their own salaries for staff, this places an even greater responsibility on the board to ensure that the use of public money represents the best value for money.

The guidance also reminds trusts that compliance with the Academies Financial Handbook is a condition of each academy trust's funding agreement and that this sets out the following requirements in relation to executive pay:

• the board of trustees must ensure its decisions about levels of executive pay follow a robust evidence-based process and are reflective of the individual's role and responsibilities

• no individual can be involved in deciding his or her own remuneration

• the board must discharge its responsibilities effectively, ensuring its approach to pay is transparent, proportionate and justifiable

It states that the evidence base that should be considered when making decisions about pay will vary depending on the context of the specific academy trust but that the board should use their discretion when determining the most appropriate data to support their decision making. The guidance then list the resources and information it believes helpful in forming the decision making in relation to executive pay, including find and compare schools in England, Financial Statements, the schools financial benchmarking tool and key stage 2 and 4 national performance tables.

Key factors

The guidance then sets out the following key factors that should be taken into account when determining levels of executive salary at the trust, both at the initial point of determining salaries, and when conducting reviews of existing salaries:

Academic performance

Trusts should consider pupil outcomes across the trust, the level of improvement required to ensure that the trust is providing the highest standard of education to its pupils and the level of progress that is being made towards improvement. How does the trust’s performance compare with the national average and with the schools of trusts in the same area, or which have a similar context?

Educational challenge

Based on the context and circumstances of the trust, it may require additional expertise, as a result of particular challenge in the educational setting, to deliver a curriculum that meets the needs of the pupils in the locality. Is the level of complexity and challenge significantly above other similar-sized trusts?

Financial performance

Decision making by the board should be done using robust data, with the board ensuring that it has sufficient access to the current actual financial position and financial projections for the trust to inform these decisions.

Any broader factors that indicate the degree of challenge in the role

Whether the role presents additional challenges outside of those that would normally be expected of this position, such as those involving:

• responsibilities that may not be typical of the role in other organisations

• existing significant concerns at the trust

• a role in leading future plans for the trust (eg expansion)

• additional accountabilities (eg leading a teaching school alliance)

• responsibility for engaging the local community

Experience of the individual

The trust should consider any additional expertise that the individual may bring to the role which will add value to the leadership team but ask itself whether this level of expertise essential for the role; what value does this additional expertise bring and what are the remuneration levels of other individuals with this level of expertise (within the trust, or within other similarly sized trusts)?

Other points to consider

The guidance points out that consideration should be given to the total remuneration package, not just the basic salary, and therefore should include performance-related pay and other bonuses, pension contributions, salary sacrifice arrangements, other taxable and non-taxable benefits and compensation for loss of office. Notice periods for non-teaching staff should not exceed 3 months.

Once appointed, decisions to award pay progression must be related to the individual's performance, as assessed through the trust's appraisal arrangements, pay increases should not be awarded automatically but linked to a clear and measurable set of KPIs and any pay increases should always be considered in the context of the wider organisation.

Benchmarking can be useful in decision making but it is important to consider the individual trust perspective when comparing against statistically similar trusts and, where results show that the trust is at the high end of the benchmarking scale, there should be a clear reasoning and rationale as to why this is the case.

The characteristics of a trust and its academies and their locations should be factored into decisions about pay. In relation to the former, larger academy trusts will usually entail bigger responsibilities and trusts with a large number of academies across a wide range of provisions may require additional expertise in order to manage the trust effectively. On location, relevant factors will include whether the trust or it's academies need to recruit to central London; whether the trust is in a sparse/rural setting (balanced against the cost of housing in that area) and whether the location results in additional financial burdens for the trust as a whole.

Decisions on executive salaries should not be made in isolation, but should be considered alongside other salaries and the wider context of the trust. Trusts should also bear in the effect any decisions will have on their gender pay gap and that they “have an important role in helping to reduce the gender pay gap, in order to build a fairer society and ensure that everyone is able to reach their full potential”.

The guidance also deals with succession planning saying that consideration should be given to this not just when seeking a replacement but also during recruitment and that individuals should not automatically be recruited at the same level as their predecessor. Trusts should also consider whether severance payments are reasonable and justifiable, the intended length of service, the required notice period and the length of time which will be required to recruit a replacement.

Finally, academy trusts are reminded that as they benefit from the use of public money, executive pay must be proportionate and defensible to the public sector market and should reflect value for money. Account needs to be taken of the public perception and the public benefit of salary decisions and, in particular, trusts should consider:

• levels of teacher pay within the trust – and how the proposed salary compares to these

• salary levels in the local area

• national salary levels

• justification in response to ESFA challenge of salaries over £100,000

• local and national media interest in salaries

• the local economy

For further information please contact:

Ben Wood

Partner

benwood@eversheds-sutherland.com

07876 780 298

Academies Financial Handbook 2019

From September 2019, academy trusts must comply with the Academies Financial Handbook 2019 (the “AFH”). This is issued by the ESFA and all academy trusts must comply with its terms as a condition of their funding agreement with the Secretary of State for Education. The aim of the AFH is stated to be to provide an overarching framework for implementation of effective financial management and control. Failure to comply with the AFH can lead to ESFA intervention and/or breach of a trust’s funding agreements. We have set out below a summary of the main changes to the 2019 edition:

Updated information about trustees including emphasis on robust governance (paragraph 1.11)

The AFH now stresses the link between good governance and good financial management. Trustees must apply the highest standards of conduct and ensure robust governance, as these are critical for effective financial management. Trustees must follow the Governance Handbook, which describes the following features of effective governance:

  • strategic leadership
  • accountability
  • people
  • structures
  • compliance
  • evaluation

Further information in respect of the clerk to the board (paragraph 1.38)

The clerk should be someone other than a trustee, principal or chief executive of the trust. The AFH states that a knowledgeable clerk can help the efficient functioning of the board by providing:

  • administrative and organisational support
  • guidance to ensure that the board works in compliance with the appropriate legal and regulatory framework, and understands the potential consequences of non-compliance
  • advice on procedural matters relating to operations of the board

Links to information on good estates management (paragraph 2.14)

Information on the production of management accounts and what they should contain (paragraphs 2.18, 2.21 and 2.23)

These clauses supplement the existing management account information by making it clear that the management accounts must be prepared every month and managers must take appropriate action to ensure ongoing viability. The format of the management accounts must include an income and expenditure account, variation to budget report, cash flows and balance sheet. Where the board has concerns about financial performance it should act quickly to ensure the trust has adequate financial skills in place.

Further clarification re executive pay (paragraphs 2.30 and 2.31)

The board must ensure its decisions about levels of executive pay (including salary and any other benefits) follow a robust evidence-based process and are a reasonable and defensible reflection of the individual’s role and responsibilities. The individual concerned cannot be involved in deciding their remuneration.

The board must discharge its responsibilities effectively, ensuring that its approach to pay and benefits is transparent, proportionate and justifiable. This will include:

  • having clear, documented procedures in place
  • avoiding conflicts of interest
  • robust decision making (e.g. the factors in determining pay and benefits are clear)
  • pay and benefits representing good value for money and are defensible relative to the public sector marketthe rationale for decision making being recorded and retained
  • a presumption that executive pay and benefits should not increase at a faster rate than teachers
  • an understanding that pay and benefits can be challenged by ESFA

More information on gender pay gap reporting (paragraph 2.32)

Tax arrangements for senior employees (paragraph 2.33)

A trust must ensure that its senior employees’ payroll arrangements fully meet their tax obligations and comply with HM Treasury’s guidance “Review of the Tax Arrangements of Public Sector Appointees” which explains that senior managers with significant financial responsibilities should be exclusively on payroll, and therefore subject to PAYE with income tax and NI contributions deducted at source.

Risk Register (paragraph 2.36)

It is mandatory for trusts to manage risks and maintain a risk register.

Whistleblowing (paragraphs 2.41 to 2.46)

There is now greater guidance on whistleblowing, including a requirement to have a whistleblowing procedure, with at least one trustee and one staff member who staff can contact to report concerns. Trusts must ensure that all staff are aware of the whistleblowing process and must ensure that all concerns raised are responded to properly and fairly.

Additional information to maintain internal scrutiny over controls and risks, including the role of audit committee, and a new requirement to send an internal scrutiny report to ESFA (paragraphs 3.1 to 3.22 and 1.17)

There is much greater guidance on internal scrutiny so that trusts conduct checks to ensures their systems are effective and compliant. All trusts must have a programme of internal scrutiny as well as an audit committee. It is vital that trusts understand and are able to comply with the very detailed internal scrutiny requirements of the AFH.

Notification requirements to DfE re key individuals (paragraphs 2.51 to 2.55)

Additional information now needs to be reported to the ESFA. Such notifications must be made within 14 calendar days of the change and be made through the governance section of DfE’s Get Information About Schools register. The records required in GIAS (including direct contact details for all) are:

  •  members
  •  chair of trustees
  •  all other trustees
  •  accounting officer
  •  chief financial officer

For each academy in a multi academy trust the records required are:

  •  Headteacher
  •  chairs of local governing bodies (including direct contact details)
  •  local governors

Emphasising trusts’ audited accounts must be provided to the members (paragraph 4.4)

Emphasising the need for prior ESFA approval for certain financial transactions (paragraph 5.1)

The AFH sets out, at paragraph 5.64, a summary list of where prior ESFA approval is required. Trusts must ensure they are familiar with these requirements as ESFA may intervene where such approvals are not sought in advance.

Providing additional clarification on reporting and approval of related party transactions (paragraphs 5.40 to 5.43)

There is a new requirement that trusts must:

  • report all transactions with related parties to ESFA in advice of the contract for goods and services commencing using ESFA’s related party on-line form
  •  obtain ESFA’s prior approval for contracts for the supply of goods or services to the trust by a related party where any of the following limits arise:
    • value that mean the cumulative value of contracts and other agreements with the related party exceeds, or continues to exceed, £20,000 in the same financial year ending 31 August
    • These requirements apply to all transactions made on or after 1 April 2019 but do not include salaries or other payments under a contact of employment with the trust.

It is still a requirement to obtain ESFA’s prior approval for any contracts or other agreements with related parties that are “novel, contentious and/or repercussive” regardless of value. However, approval must be sough through ESFA’s enquiry form, not through the related party on-line form.

A requirement for trusts under a financial notice to improve to publish it on their website (paragraph 6.15)

This must be done within 14 days of the FNtI being issued.

Listing the delegated authorities being revoked of under a financial notice to improve (paragraph 6.17)

If a FNtI is issued then the delegated authorities in paragraphs 5.6 to 5.30 of the AFH are revoked and must instead be approved by ESFA in advance. This would include, for example, staff severance payments, compensation payments or pooling GAG. A trust may also be prevented from entering into transactions with related parties without approval.

Further information about how the Secretary of State may intervene over concerns about an individual managing an academy trust (paragraphs 6.19 to 6.23)

This will include requiring a trust to remove a member or trustees where the trust’s funding agreement allows for this, or the making of a direction under s128 of the Education and Skills Act 2008 prohibiting individuals from taking part in trust management.

For further information please contact:

Helen Cairns

Principal Associate

helencairns@eversheds-sutherland.com

0161 831 8291

Asbestos exposure in educational buildings – what are the risks and what should academies be doing?

In March 2019, the Office for National Statistics (ONS) published data showing the number of deaths, caused by mesothelioma for teaching and education professionals in England, between 2001 and 2016. The numbers are worryingly high; in the 10 year period between 2006 and 2016, 225 teachers died as a result of mesothelioma.

Mesothelioma is a malignant tumour of the pleura (the membranes lining the lungs) or peritoneum (the membrane lining the abdomen). It is a particularly nasty cancer which is always fatal. Mesothelioma is caused by exposure to asbestos but has a latency period of between 10 and 50+ years, normally there is a gap of around 40 years between exposure to asbestos and the development of the cancer.

When asked about the ONS figures Dr Mary Bousted, Joint General Secretary of the National Education Union was quoted as saying “These figures are shocking. No one should have to suffer an early death because the building they work in contains asbestos. Education staff are at risk but of even greater concern are children, who are more vulnerable to developing mesothelioma if exposed at a young age. The only certain way to prevent future deaths is to rid our educational buildings of this deadly material.”

So are teachers and children being exposed to asbestos in education buildings?

On 1 March 2018 the Department for Education (DfE) launched the Asbestos Management Assurance Process (AMAP) to enhance its understanding of the management of asbestos in schools in England. 22,072 schools were asked to provide information about management of asbestos in their school estate, using the AMAP online portal.

On 17 July 2019 the DfE published a report containing its findings. Although the process was voluntary, by 15 February 2019 a total of 19,522 (88.4%) schools had provided information and 15,796 (80.9% of those responding) stated that asbestos is present on their estate. The DfE has said that it will contact those schools who have not participated to ask them to do so. In relation specifically to academies 6,756 (89.9%) responded to the survey with 81% of these saying that asbestos is present on their estate.

The DfE has reported that 18,846 (96.9%) of participating schools indicated that that they are broadly managing asbestos in line with regulatory requirements (ie they have an asbestos register and an asbestos management plan or have stated that there is no asbestos). Of the 5,296 academies that reported they have an asbestos register, 81% had reviewed this within the last year, although 2.9% had last reviewed it between three and five years ago and 2.5% had not reviewed it in the last five years. In relation to the 5,104 academies who reported having an asbestos management plan, 71.2% had reviewed this within the last year, although 5.2% had not done so in the last five years.

However, the DfE concluded that the responses from 3,485 (17.8%) of participating schools suggested that, whilst they are compliant with the Control of Asbestos Regulations 2012, their practice is not in line with the DfE’s guidance “Managing asbestos in your school” published in 2017. The DfE says it is working with those institutions to verify their responses, highlight the areas that need addressing and share the guidance with them.

Most at risk are those schools constructed between 1945 and the mid-1970s when the use of asbestos was at its peak. The source of asbestos in post war schools are wide and various, including thermal insulation around pipes, ducting in floor and ceiling voids; sprayed coatings for insulation and fire protection on beams, columns and ceilings; insulation board used extensively in walls, windows and door surrounds, door panels, ceiling tiles and notice boards; roofing felt; cement products, including roofing sheets and external window panels; reinforced plastics, such as PVC floor tiles, toilet cisterns and toilet seats.

Asbestos containing materials (ACMs) were also commonly encountered in science and wood/metal work lessons, with insulating board, Bunsen burner mats, fire blankets, oven mitts and welding aprons all often containing asbestos.

It is not only historic ACMs that are potentially putting pupils and staff at risk. As recently as 2018 the Health and Safety Executive (HSE) were made aware that two UK laboratory supply companies had supplied schools and potentially other users with gauze mats which contain asbestos. The metal gauze mats were designed for use over Bunsen burners.

Expert advice from the HSE is that if asbestos is unlikely to be damaged or disturbed, then it is best managed in situ. The Department is clear that if asbestos does pose a safety risk and cannot be effectively managed in situ, then it should be removed from schools.

Since 2015, the Department has allocated over £7.4 billion to those responsible for school buildings to maintain and improve the school estate, including removing asbestos when it is the safest course of action. In addition to this, asbestos is a factor in choosing which buildings to re-build through the Priority School Building Programme.

Evidence from the Medical Research Council indicates that the level of asbestos in many schools significantly exceeds the background ambient level, although the levels are the same as other buildings containing ACMs where they are properly managed. The concern is whether they are being properly managed. In 2009/10 a quarter of local authority schools that were inspected had enforcement action taken against them for failing to safely manage asbestos. A fifth of schools outside local authority control had action taken against them for the same reason.

The number of mesothelioma deaths due to asbestos exposure at schools will continue to rise. Leading epidemiologists suggest that in future there could be as many as 100-150 deaths per year due to asbestos exposure at schools.

This is likely to lead to an increase in personal injury claims brought against education institutions in the coming years. A further concern, and one which could lead to further claims being commenced, is approximately a quarter of all mesothelioma deaths cannot be attributed to any known occupational exposure to asbestos.

What should academies be doing?

If the worst comes to the worst, you might assume that education institutions will have insurance in relation to claims. Unfortunately, that is often not the case. Any exposure to former pupils, contractors, or visitors to the school, will be dealt with under a Public Liability (PL) insurance policy. Most modern PL insurance policies will contain asbestos exclusion clauses, this means often education institutions are left having to pay these claims directly. This is obviously a concern as damages paid in this type of claim are often in excess of £250,000. Claims from staff will normally be covered by Employer’s Liability (EL) insurance, however, with exposures to asbestos taking place 40 years ago, there are often difficulties in tracing historic EL policies. Those academies who have opted into the risk protection arrangement (RPA) are covered in relation to asbestos claims but not for claims relating to exposure occurring prior to the date of the signing of the funding agreement for the relevant academy.

Academies should ensure that they have an asbestos register, which is updated regularly (at least once a year). If academies have any queries about asbestos registers then it is recommend that they contact the HSE directly. Academies should also make sure they keep records of their historic EL and PL insurance policies as you never know when these will be required.

Finally, academies should bear in mind the main points contained in the DfE guidance “Managing asbestos in your school”:

You should take the following steps to manage the asbestos in your school:

1. Have a ‘management survey’ of asbestos containing materials (ACMs) in your school

2. Assess the risks associated with ACMs in your school

3. Devise a plan for managing asbestos in your school

4. Make sure staff, visitors and contractors know the risks and precautions they need to take

5. Keep the management of asbestos in your school under review

Eversheds Sutherland regularly represent education institutions in asbestos claims brought against them, our specialist disease lawyers are well versed in relation to asbestos regulations and often advise education institutions about their obligations and potential liabilities in asbestos related claims. If you are facing an asbestos related claim or have any queries, or concerns, relating to this article, or about asbestos in general, please contact one of our specialist lawyers who will be happy to assist.

 For more information please contact:

Wayne Donovan

Principal Associate

waynedonovan@eversheds-sutherland.com

0147 328 4575

Kirsten Almond

Senior Associate

kirstenalmond@eversheds-sutherland.com

0147 328 4451

Recent changes to the TPS

On 1 September 2019, the Teachers' Pensions Schemes (Amendment) Regulations 2019 (SI 2019/1134) (the “Regulations”) took effect. The Regulations amended the rules of the Teachers’ Pension Scheme (“TPS”) to take account of developments in pensions case law in recent years, specifically the Brewster and Walker v Innospec decisions, as well as provide various minor updates designed to improve the operation of the TPS.

Brewster

The changes these Regulations make to account for the Brewster decision remove the requirement for unmarried couples to have to completed an additional form to nominate their partner for equivalent spousal benefits. The Regulations align the TPS provisions for unmarried couples with those for surviving spouses and civil partners. Such changes should be relatively straightforward for employers to manage as there is now no additional nomination form for members to complete. For commentary on the Brewster decision itself, please see our earlier briefing here.

Walker v Innospec

In respect of the Walker v Innospec decision, the amendments made to the 2010 Scheme by these Regulations are broadly to provide same-sex couples with equivalent benefits to those of opposite-sex widows (but not widowers – further consultation is expected as primary legislation in this area has not yet been amended for this decision). The law previously permitted schemes to restrict benefits for same-sex spouses accrued prior to 5 December 2005 to the member’s ‘guaranteed minimum pension’ (GMP) only (i.e. not the pension benefits in excess of the relatively low GMP amount enjoyed by opposite-sex spouses). This decision therefore extended the benefits payable to a category of beneficiaries. Further information on the Walker v Innospec decision can be found in our previous briefing here.

The 2015 section of the TPS already provided equivalent benefits for same-sex spouses, so no amendment was required. The main effect of these changes arising from this decision are that the valuation assumptions used when valuing the 2010 section of the TPS will need to be revised.

What other amendments are being made?

Other amendments being made under the Regulations are minor but should hopefully provide clarity for certain issues and amend drafting errors, for example, clarifying that medical reports used for assessing ill-health incapacity must be recent (i.e. dated within the previous 18 months). Such amendments are not material to employers.

What implications do the Regulations have for education sector employers participating in the TPS?

As noted above, the changes being made in respect of the Walker v Innospec decision are likely to result in changes to the valuation assumptions of the TPS, as benefits are effectively being increased for an entire category of beneficiaries (i.e. same-sex spouses). This is therefore likely to increase liabilities in the TPS.

However, the effect of this decision is likely to be rolled in with the valuation changes to public sector schemes as a result of the McCloud/Sargeant case mentioned in our briefing here. The Government has estimated the cost of implementing the Walker v Innospec decision at approximately £20m for public sector schemes. This amount however pales in comparison to the effect of the McCloud/Sargeant decision which was estimated to be £4bn per year across the public sector. The overall effect of the McCloud/Sargeant decision on the valuation is as yet unknown and we anticipate the Government will legislate before a further hearing scheduled for next year.

We therefore expect the changes made by these Regulations to incur a (relatively) minor cost implication for employers in the TPS.

For more information please contact:

Sarah Franklin

Partner

sarahfranklin@eversheds-sutherland.com

0121 232 1196

 

Cat Ellis

Principal Associate

catellis@eversheds-sutherland.com

0113 200 4943

Top tips for managing transport in academies

Transport safety in academies is about a lot more than an annual service of the academy minibus.

In December 2014, a 15-year-old boy died after being struck by a minibus when he was crossing a road outside his school to board his bus home. In November 2018 Bridgend council was fined £300,000 for its failure to enlarge a layby to accommodate all school buses at home time and allow pupils to board safely from the pavement. The Health and Safety Executive has since urged all schools to review traffic arrangements within their grounds to ensure they have properly considered all significant risks and their associated control measures.

In addition to ensuring appropriate traffic management on academy property, road traffic legislation imposes specific requirements on employers in respect of vehicle use and maintenance and driving on public roads when “driving for work”.

Common mistakes and misconceptions generally made around driving for work include:

“They do not drive a vehicle owned by the academy, so do not drive for work”

Understanding who drives for work is essential to managing risk. The definition of “driving for work” is ”any driving done for work purposes other than the normal commute to the usual place of work”. This could include, for example, a short trip to the supermarket to purchase academy supplies or a drive to another campus. Importantly, this definition is not linked to who owns the car or whether it is leased or hired.

“They are driving their own car, so are covered by their personal insurance”

If an individual is driving for work, they will require business insurance regardless of how often they drive for work and whether they use their own vehicle. Employers should consider whether employees’ vehicles used for work purposes (often called “grey fleet”) are safe and legal to be on the road, and whether drivers are properly licensed and insured. This requires effective communication with employees and driver licence checks.

“They have a valid driving licence, so are fine to drive the academy minibus”

Do not confuse qualifications with competence. An individual may have a valid driving licence (for the appropriate class of vehicle), but this does not equate to competence driving larger vehicles such as a minibus. Check that they are confident and experienced with driving larger vehicles, monitor their driving and provide appropriate information, instruction and training for the vehicle they are using.

“We have the academy minibus serviced each year, so don’t need to regularly check it”

This is a common mistake. Whilst an annual service and MOT is essential, regular further basic checks should include ensuring that all lights are working, mirrors are correctly positioned and tyres are not damaged. Employers should also check that the type of vehicle being driven is appropriate for the intended purpose and that the driver is familiar with it.

“We have engaged a competent bus company to transport our students and carried out all the necessary background checks. It’s now down to them”

Wrong. When using contractors, employers still have health and safety responsibilities. Ensure you manage the bus company effectively: check any health and safety policy and the training delivered to drivers; provide them with relevant information such as vehicle and pedestrian routes, and undertake regular monitoring to ensure the drivers are not acting in an unsafe manner.

Effective planning and design of the academy site is also required to ensure the safety of pedestrians and those on board any vehicles. To reduce the likelihood of an accident, clearly mark out and maintain separate pedestrian and vehicle routes. Consider if there are ways to reduce the need for vehicles to reverse. If employees are monitoring a car park, ensure they are wearing high-vis vests and are visible to drivers at all times, as well as trained to at least a basic standard in traffic management.

For further information please contact:

Surekha Gollapudi

Senior Associate

surekhagollapudi@eversheds-sutherland.com

0113 200 4247

 

Claire Watson

Associate

clairewatson@eversheds-sutherland.com

0191 241 6389

Keeping Children Safe in Education – revised guidance for academies

The latest version of the statutory guidance from the DfE on Keeping Children Safe in Education is now in force. Below we highlight the main changes from the previous version so that academies can see what is new with effect from September 2019.

Part one – Safeguarding information for all staff

There is now a section on abuse and neglect under the heading “What school and college staff should look out for”. The content has not been changed but the information has been put in one place and moved earlier in part one.

Under the section on safeguarding issues, two additions have been made:

• upskirting (which is now a criminal offence) is included. The guidance states that this typically involves taking a picture under a person’s clothing without them knowing, with the intention of viewing their genitals or buttocks to obtain sexual gratification, or cause the victim humiliation, distress or alarm.

• there are new paragraphs on serious violence stating that all staff should be aware of the associated risks and understand the measures in place to manage these. Reference is also made to the advice for academies provided in the Home Office’s “Preventing youth violence and gang involvement” and its “Criminal exploitation of children and vulnerable adults: county lines”.

Part two - The management of safeguarding

The paragraphs dealing with multi-agency working have been updated to reflect new safeguarding partner arrangements.

The section on information sharing has been expanded to state that:

• proprietors should ensure relevant staff have due regard to the data protection principles, which allow them to share personal information, as provided for in the Data Protection Act 2018 and the GDPR.

• relevant staff should be confident of the processing conditions under the Data Protection Act 2018 and the GDPR which allow them to store and share information for safeguarding purposes, including information which is sensitive and personal, and should be treated as ‘special category personal data’.

• academies should not provide pupils’ education data where the serious harm test under that legislation is met - so in a situation where a child is in a refuge, this could mean that education data can be withhold under the GDPR.

• proprietors should ensure that staff who need to share ‘special category personal data’ are aware that the Data Protection Act 2018 contains ‘safeguarding of children and individuals at risk’ as a processing condition that allows practitioners to share information. This includes allowing practitioners to share information without consent, if it is not possible to gain consent, it cannot be reasonably expected that a practitioner gains consent, or if to gain consent would place a child at risk.

Other paragraphs in part two have been amended to reflect the new requirements for Relationships Education, Relationships and Sex Education and Health Education (mandatory from September 2020) and to reflect the new Ofsted framework from September 2019.

Annex A – Further information

The section on “So called ‘honour-based’ violence” has been amended by adding “including Female Genital Mutilation and Forced Marriage” into the heading to make it clear that they fall into “honour based” violence – they were already in the paragraph itself. A new paragraph on upskirting has been added to reflect the fact that this is now a criminal offence.

Annex C – Online safety

A link has been added link to the new DfE guidance “Teaching online safety in school” dated June 2019. This guidance outlines how academies can ensure their pupils understand how to stay safe and behave online as part of existing curriculum requirements.

For further information please contact:

Ben Wood

Partner

benwood@eversheds-sutherland.com

07876 780 298

When doth they protest too much? Managing the risk of protestors and campaigners on site.

It might not be the norm for any academy but incidents of protest or disruption are becoming a fact of life for the sector. Whether disruption arises from a disaffected parent or student, an HR disciplinary issue or some broader campaign, the risk is a very real one. And the school gate protests which have been triggered by the recent publication of guidance on teaching relationship and sex education demonstrate how institutions can also become embroiled in controversy which is sparked by much wider social and political issues.

So what happens if events unfold which spark unwanted activity in and around a academy site and threaten to disrupt operations? Once started, campaign activity can gather momentum quickly. Often the issues which have triggered the protest are complex and arouse strong feelings. And protests often attract a high media profile quickly (if only locally). So how the institution responds can have significant and longer term reputational consequences. Handling the issues carefully but confidently will be critical to ensuing that the issues are successfully resolved with reputation intact.

It’s always a balancing act.

Any institution caught up in a campaign or being targeted for disruption, will always want to ensure that its response is not perceived as stifling legitimate free speech. The education sector more than any other recognises and upholds that principle.

When the boundaries are crossed though and “free speech” is prayed in aid of unlawful activities which disrupt learning or risk safety, the balance is likely to tip in favour of taking action.

It is possible that in those circumstances the campaigners will argue that the protest is justified under the Human Rights Act 1998. Article 10 confers the right to freedom of expression and Article 11, freedom of peaceful assembly. In a series of recent cases protestors have relied upon these rights to seek to defend the right to protest – even in highly disruptive ways.

The good news from the institution’s perspective is that this debate has largely been resolved in favour the property owner’s right to secure and maintain control of its premises. Recent cases have confirmed that the Human Rights Act is not a reason to deprive a land owner of an order prohibiting unlawful protest activities.

Not all protest is unlawful protest

It might sound obvious but, in the heat of the moment, it’s worth remembering that protest of itself it not unlawful. Congregating outside the school gate without obstructing the route and lobbying for support may well not involve any legal wrongdoing at all.

Before any action is contemplated therefore, it is important to be clear exactly what is going on which could be characterised as unlawful.

Conducting campaign activities on academy premises will amount to an unlawful trespass. It goes beyond the implied licence which students have to enter premises for the purpose of study. Similarly blockading the access to premises is also unlawful. So too is obstructing the public highway or applying verbal pressure aimed at dissuading individuals from going onto campus if that conduct could be characterised as harassment or intimidation.

An injunction can prevent disruptive activities on and off site

In principle if the activities which are being carried out as part of the campaign amount to unlawful conduct then the institution will be entitled to take legal action to prevent them. Issuing court proceedings is very unlikely to be the first tactic that the senior management team will want to employ. In the right circumstances however, an injunction prohibiting unlawful activity will be an option and may need to be considered.

It offers the possibility of putting beyond doubt the specific scope of prohibited conduct in any particular campaign scenario. It would also send a strong signal to those whose activities are disrupting the operation of the institution. Ultimately anyone who flagrantly and persistently ignores an injunction is at risk of contempt of court.

Before an injunction is sought detailed evidence will need to be prepared demonstrating what has happened, why it is unlawful and what impact it is having. Ensuring that evidence is captured accurately and contemporaneously will therefore be important if an academy is to be in a position to seek an injunction, if and when it decides it needs to.

Exercise care in applying for an injunction in anticipation of disruption

In principle, an injunction is available where – and as soon as - there is a real and imminent risk of unlawful conduct occurring (London Borough of Islington v Elliott and others [2012] EWCA Civ 56). Once that disruption begins, the case for an injunction is therefore usually fairly clear. However, the position may not be as clear cut for an institution that fears disruption in the future, perhaps because others have been targeted already and in similar circumstances.

If an application is made too soon the academy runs the risk of being unable to persuade the court that an injunction is really necessary; and failure will cause reputational harm.

Caution should therefore be exercised before an injunction is sought without evidence of direct targeting on the institution itself. Detailed evidence of the likelihood of unlawful activity should be gathered in those circumstances before the application is made.

The legal route is always part of the bigger picture

Taking legal action to prevent disruption from campaigners is never going to be an academy’s first choice.

There will usually be options for practical steps to dissuade the protestors from disrupting access to site or working around any disruption, if it arises. In more complex cases where criminal conduct has occurred the police may also be willing to assist. Their resources are limited though and if the issues largely focus on the disruption on or around private land they may not be willing to commit public funds in becoming too heavily involved.

If, as a last resort, an injunction is being contemplated then careful thought should always be given to the reputational implications of the actions which the academy does - and does not - take in navigating these complex issues.

Striking the balance between the interests of various groups affected by the institution’s decision will play in here. The right to support the principles of free speech will be important. So too the welfare of staff and students and the importance of continuity of teaching for all. Communicating clearly how and why the academy has decided how to strike that balance will be critical to achieving a successful long term outcome.

For further information please contact:

Alison Oldfield

Partner

alisonoldfield@eversheds-sutherland.com

0113 200 4660

 

 

For more information contact

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