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Education Academies e-briefing Summer 2017

  • United Kingdom
  • Education - Briefings

11-07-2017

In this issue:

Transgender pupils – meeting your legal duties and providing effective support

Parents still risk penalty fines over term-time holidays

Enhanced severance payments – reasons to be careful

Managing stress in the education sector

Transgender pupils – meeting your legal duties and providing effective support

Academies are more frequently having to consider the practical steps they may take to support pupils, at increasingly younger ages, who question their gender identity.

Meeting the legal and support needs of transgender pupils and ensuring they have an opportunity to engage fully in life at school whilst also balancing the needs of the school community at large can be a challenge. In this article, we consider the legal framework applicable to transgender pupils and explore some of the key practical steps academies may need to take to discharge their legal obligations and more generally meet the support needs of transgender pupils.

The legal framework

The Equality Act 2010 (“the Act”) provides protection to pupils against discrimination by reference to ‘protected characteristics’, including ‘gender reassignment’. Gender reassignment is defined by the Act as where a person is “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex”.

Gender reassignment is therefore a personal (rather than a medical) process which involves a person moving away from their birth sex to their preferred gender and expressing that gender in a way that differs from the physical sex with which they were born. Whilst this may involve individuals undergoing medical procedures, for pupils it is more likely to involve them choosing to dress in a different way as part of the personal process of change.

Under the Act, it is unlawful for pupils to be discriminated against by being treated less favourably (direct discrimination) or being subject to a particular disadvantage which cannot be justified (indirect discrimination) because of gender reassignment. This protection extends to all aspects of life at school, including: admissions; providing education and access to benefits, facilities and services for pupils; and exclusion decisions. In addition, when carrying out their activities, academies have positive duties under the public sector equality duty to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between persons who share a particular characteristic (including gender reassignment) and those who do not.

Effective communication, support and training

Central to meeting the needs of transgender pupils, and discharging the academy’s legal obligations, is maintaining appropriate communication with the pupil concerned and relevant stakeholders (such as parents, teachers and support workers) and agreeing (and documenting) an appropriate and tailored individual support plan which is reviewed and revised regularly. Academies should ensure that, when taking these steps, the legal duties owed in relation to confidentiality and data protection (see further below) are met.

Academies should also ensure that staff are appropriately trained to meet the needs of transgender pupils and the academy’s legal responsibilities. More generally, academies should engender a positive understanding and respect amongst their communities and ensure the principles of equality, diversity and inclusivity are promoted (for instance, through educational and pastoral activities, the curriculum, assemblies, etc.). A culture and whole school environment which celebrates difference and diversity, and challenges stereotypes, will also assist academies in meeting their public sector equality duties.

Pupils’ names and school records

Where transgender pupils request to use a name, and adopt the pronoun, consistent with their chosen gender identity (rather than their legal name), this should be respected by academies, including in the context of internal systems, general academic and pastoral activities and communications (such as letters sent to parents). The School Census Guidance (2016 to 2017) includes special provision and notes that whilst the gender of pupils must be provided in the format ‘M’ or ‘F’, in exceptional circumstances a school may be unsure as to which gender should be recorded and, where this is the case, gender should be recorded according to the wishes of the pupil and/or parent.

Uniform and dress policies

Academies should consider the flexibility which may be exercised in relation to uniform and dress policies in order to meet the needs of transgender pupils, including to ensure that they are able to dress appropriately and in a manner consistent with their gender identity or in a ‘gender neutral’ way. Choosing to dress in a manner consistent with their chosen identity can be a large and daunting step for pupils and academies should ensure they are fully supported at this potentially difficult time.

Changing and toilet facilities

One of the areas in which it can be most difficult for academies to identify a workable solution which meets the rights and needs of transgender pupils and ensures the health, safety and welfare of pupils at large, relates to changing and toilet facilities.

Transgender pupils might request the use of the changing and toilet facilities of their chosen gender. Alternatively, they might seek access to facilities which offer them more privacy to assist in their management of feelings of vulnerability or out of concern that they may receive unwanted attention or experience bullying in shared facilities.

A failure to provide appropriate changing and toilet facilities for transgender pupils can give rise to complaints of direct and indirect discrimination.

The most appropriate solution is likely to depend on a range of factors, including the nature of the academy’s existing facilities (some academies, for example, have unisex facilities), the needs of other pupils (including those with medical needs and disabilities) and the potential impact of particular arrangements on pupils generally. Academies should conduct an appropriate risk assessment, in conjunction with the pupil, to assist in identifying a solution which meets the health, safety and welfare needs of all pupils whilst ensuring inclusion, respect and dignity.

One solution offered by academies is to provide transgender pupils with access to alternative ‘gender neutral’ changing and toilet facilities. The Equality and Human Rights Commission (which has issued guidance to schools on discharging their equalities duties) suggests, for example, that “A suitable alternative might be to allow the pupil to use private changing facilities, such as the staff changing room or another suitable space”. In such circumstances, academies may need (if they have not already done so) to consider re-naming the facilities (for example, from ‘disabled toilet’ to ‘accessible toilet’ or ‘toilet’) to remove any perceived stigma potentially associated with particular names.

Trips and excursions

Academies will need to follow a similar process when organising trips and excursions (including, in particular, those with a residential element). It will be vital in these circumstances for academies to engage in an appropriate dialogue with pupils and parents and agree arrangements which facilitate their engagement and respect their rights and dignity. This might include agreeing appropriate arrangements for room sharing and participation and engagement in activities of a physical nature.

Data protection and confidentiality

When managing individual cases, academies should remain mindful of the duties owed in relation to confidentiality and data protection and ensure that personal data is held, processed and disclosed (including internally) fairly and lawfully. Importantly, personal data should only be disclosed where there is an appropriate consent in place.

How we may help

The management of equality issues is a key area of interest for our education sector clients. We are able to work with you to develop appropriate policies where these do not currently exist. We are also able to review your existing policies to ensure that they are up-to-date, accord with best practice and are effective in managing this challenging area. We regularly deliver training in relation to equality issues and we support our clients navigate the sensitive cases in a fair and consistent manner.

For further information please contact:

Nicola Bennison, Partner

Tel: 0115 931 7602

nicolabennison@eversheds-sutherland.com

David Horan, Senior Associate

Tel: 0161 831 8281

davidhoran@eversheds-sutherland.com

Parents still risk penalty fines over term-time holidays

A recent Supreme Court decision overturned a previous ruling that Mr Platt, a father who had taken his daughter out of school for a seven day term-time holiday, was not guilty of failing to ensure his daughter attended school regularly. Therefore parents who choose to take their children out of school without authorisation continue to run the risk of being fined.

Background

Mr Platt’s daughter was a registered pupil at a primary school on the Isle of Wight. Mr Platt applied for permission to take his daughter to Florida on a holiday which would entail her missing seven days of school. The school’s head teacher refused the request but the holiday was taken.

The Isle of Wight Council (“the Council”) issued Mr Platt with a fixed penalty notice of £60 for the unauthorised holiday. Mr Platt refused to pay the penalty by the initial deadline, and also failed to pay a further £120 penalty notice. As a result, the Isle of Wight Magistrates Court (“Magistrates’ Court”) had to determine whether Mr Platt was guilty of an offence under section 444(1) of the Education Act 1996 (“the Act”). This provides that a parent is guilty of an offence if a child of compulsory school age, who is a registered pupil of a school, “fails to attend regularly” at the school.

Mr Platt pleaded not guilty and following the trial, the Magistrates’ Court found no case to answer on the basis that Mr Platt’s daughter’s attendance before the Florida holiday was 95% and afterwards it had only dropped to 90.3%. A Divisional Court of the High Court upheld the Magistrates Court’s decision and concluded that the magistrates were entitled to consider a child’s attendance outside the period of the holiday in determining regular attendance.

The case was appealed to the Supreme Court.

Decision

The Supreme Court commented that under the Act there are a number of statutory exceptions where a child’s absence shall not amount to a failure to attend regularly, namely where the absence was:

• by reason of sickness or other unavoidable cause;

• with leave;

• on a day exclusively set apart for religious observance by the religious body to which the parent belongs; or

• because of a failure to make appropriate travel arrangements.

The Supreme Court considered “regularly” could not mean “at regular intervals”, e.g. once a week for church attendance, due to the fact that full-time school attendance is compulsory under law. The Court also determined that “regularly” could not mean “sufficiently frequently” either. It was not just the case that there was a clear statistical link between school attendance and educational achievement, it is also clear that unauthorised absences disrupt the education of all pupils. This may require a teacher who has already covered and marked a subject area with the other pupils having to do so again for the child taken out of school. The Court considered that group learning would also be diminished because if one pupil could be taken out whenever it suited the parent(s), then so could others. With different pupils being taken out at different times, this would increase the disruptive effect “exponentially”.

Instead, the Supreme Court determined that “regularly” means “in accordance with the rules prescribed by the school”. A child is not, therefore, to be taken to have failed to attend regularly if s/he is absent with the permission of a person authorised by the governing body or proprietor of the school to give it.

In Mr Platt’s case, the Supreme Court found that the penalty notice was properly issued to him and upon having failed to pay, he should have been convicted of an offence unless he could establish one of the statutory exceptions set out above. Mr Platt’s case was therefore remitted back to the Magistrates’ Court for a new decision. Mr Platt was subsequently convicted, given a 12 month conditional discharge and ordered to pay £2,000.

The Supreme Court noted that the child’s mother had also received and paid a penalty notice for a previous unauthorised absence, and she may feel a sense of injustice if the case against Mr Platt did not proceed, given that the penalty notice was properly issued.

Comment

The Supreme Court’s ruling removes the uncertainty created by previous judgments in this case and provides clarity that parents need the school’s consent to take their children on holiday during term-time to avoid running the risk of a fine. It remains to be seen whether, in practice, head teachers exercise their discretion more widely or whether there will be a continued increase in fixed penalties issued for unauthorised absence.

For more information please contact:

Alison Oldfield, Partner

Tel: 0113 200 4600

alisonoldfield@eversheds-sutherland.com

Trish D’Souza, Senior Associate

Tel: 02920 477 354

trishdsouza@eversheds-sutherland.com

Enhanced severance payments – reasons to be careful

We are often asked to advise on and draft settlement agreements for academies. These can be useful tools in an employer’s armoury and, used appropriately, can work well for both parties, achieving a swift and more amicable resolution to what could otherwise be a lengthy and difficult process.

There are, however, additional obligations which an academy, as custodian of the public purse, must give due consideration to before a settlement agreement is entered into.

These obligations are set out in the Academies Financial Handbook (“the Handbook”). The latest version of the Handbook was implemented by the Education Funding Agency (now the Education and Skills Funding Agency (“ESFA”)) in September 2016.

In accordance with the Handbook, academies must ensure that, before making a special staff severance payment (defined as payments made to employees outside of their normal statutory or contractual requirements when they leave employment by way of resignation, dismissal or agreed termination), the following requirements are satisfied:

• the trustees reasonably consider the proposed payment to be in the interests of the trust; and

• the payment is justified based on a legal assessment of the chances of the trust successfully defending the case at employment tribunal.

If the settlement is justified then the academy needs to go on to consider an appropriate level of settlement. Whilst academies have delegated authority to approve individual severance payments where the non-statutory/non-contractual element is under £50,000, academies are expected to apply the same level of scrutiny as if the payment was over £50,000 so that they can demonstrate that the payment represents value for money.

The ESFA’s severance payments form (https://www.gov.uk/government/publications/academies-severance-payments-form) is generally used for seeking prior approval for payments where that is needed, i.e. those over £50,000. The ESFA does suggest, however, that academies should consider completing this form even where they will not strictly need to submit it because the payment is below the £50,000 limit.

The form does provide useful guidance for academies and should assist them in focussing on the issues to be considered when contemplating a severance payment, particularly as the ESFA’s guidance makes it clear that they expect academies to have a business case for any non-contractual severance payment and to be able to produce that business case to the ESFA if requested.

A failure to demonstrate that the severance payment represents value for money could lead to the following interventions:

• the ESFA clawing back the payment;

• the ESFA conducting a site visit and imposing sanctions in relation to future severance payments; or

• in serious cases, the ESFA could issue a Financial Notice to Improve which would remove an academy’s delegated authority to approve severance payments.

We are aware of at least one academy which was asked by the ESFA to provide information in relation to a severance payment which it had made to a member of staff, which had not required prior authorisation from ESFA and which was of a, relatively, small amount. Having responded initially to the request the academy was asked a number of follow up questions over a number of months. Whilst this did not lead to any further action on behalf of the ESFA the management time needed to respond to the questions was clearly time that could have been better spent elsewhere.

Whilst a Settlement Agreement can often feel like (and, indeed, can be) the best solution, we would encourage all academies to take some time to consider whether they can adequately satisfy the value for money test before making any binding commitments.

There are further proposed changes to severance payments in the public sector which are likely to come in to force in the next few years, including a cap on payments and the requirement on high earning individuals to pay back a proportion of the payment should they be re-employed in the public sector within a period of 12 months following the payment. These, together with the continued “squeeze” on the public purse, means we can expect severance payments, and the public sector organisations which make them, to remain under the spotlight.

In addition to the above the government has been consulting on the tax treatment of severance payment generally and from April 2018 it is likely that the following provisions will be relevant to academies:

• all payments in lieu of notice will be treated as earnings (subject to tax and class 1 NICs). Effectively, employers will be required to subject to tax an amount equivalent to the employee's basic pay if notice is not worked; and

• all termination payments above the £30,000 threshold will be subjected to class 1A NICs.

For more information please contact:

Ben Wood, Partner

Tel: 07876 780 298

benwood@eversheds-sutherland.com

Helena Tattersall, Senior Associate

Tel: 0113 200 4475

helenatattersall@eversheds-sutherland.com

Managing stress in the education sector

Change in focus

For the year 2016/2017, the Health and Safety Executive (“HSE”) has embarked on a new strategy which focuses on the health of employees as well as the more ‘classic’ safety issues which have historically resulted in serious injuries, or even death. As part of this shift in focus, the HSE has identified ill health, and particularly stress, as a key area which all sectors are struggling to manage.

Why is managing stress important in the education sector?

Statistics collated by the Labour Force Survey on behalf of the Office for National Statistics show that over the three year period between 2013/14 to 2015/16, the prevalence rate for work related stress (including depression and anxiety) across all industries was 1,230 cases per 100,000 people employed. During that same period in the education sector, the prevalence rate for work related stress was significantly higher at 1,780 per 100,000 people employed. A significant percentage of working days lost to employees taking time out from work as a result of stress, depression or anxiety were therefore in the education sector.

What is the impact?

For each case of work related stress, depression or anxiety, an employer can expect the affected employee to be absent from work for, on average, 23.9 days. In addition to the clear, moral reasons for getting this right, there are tangible cost implications in getting it wrong:

• poor productivity

• high staff turnover

• poor reputation in the marketplace

• increased accidents

• potential litigation

• potential criminal investigation

What has changed?

In March 2017 the HSE issued a workbook titled “Tackling work-related stress using the Management Standards approach” (HSE publication WBK1) which set out a step by step approach to managing work-related stress. In many ways, the workbook builds upon the already familiar Management Standards. The workbook is intended to provide practical advice on implementing the Management Standards approach to assessing the risks of stress in your organisation.

Of particular interest to most organisations, the workbook includes an example stress policy which can be tailored to suit your particular circumstances.

Next steps

In due course, the HSE will likely focus its attention on the sectors with the highest incidents of stress within its workforce. As education is the third highest sector for prevalence of stress (after public administration and defence, and health and human services) all education institutions, including academies, must act now to ensure they have properly considered their approach in tackling work-related stress and that after carrying out their stress risk assessment, they have put in place sufficient measures to control the identified risks.

For more information please contact:

Paul Verrico, Partner

Tel: 0113 200 4084

paulverrico@eversheds-sutherland.com

Surekha Gollapudi, Associate

Tel: 0113 200 4247

surekhagollapudi@eversheds-sutherland.com