25/11/2021
Welcome to our Autumn edition of Higher Education Employment Eye with analysis of recent case law and some new legislation working its way through the House of Commons. This is our last edition of HE EE – future employment law analysis will be incorporated into our wider legal bulletin on key issues in HE.
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Skills and Post-16 Education Bill
The Skills and Post-16 Education Bill was introduced in the House of Lords on 18 May 2021 and on the 26 October 2021 it received its first reading in the House of Commons.
The Bill forms the legislative foundation for reforms set out in the Department for Education (DfE) White Paper, Skills for Jobs: Lifelong Learning for Opportunity and Growth (January 2021). This Bill also includes measures to address some of the recommendations of the May 2019 publication - Review of Post-18 Education and Funding (the Augar Review). Additionally it supports the Prime Ministers new Lifetime Skills Guarantee, as part of the blueprint for a post-16 education system that will ensure everyone, no matter where they live or their background, can gain the skills they need to progress in work at any stage of their lives.
Main benefits of the Bill
- This Bill offers adults the opportunity to gain in demand skills and opens up further job opportunities for them;
- It will also adjust the current system around the needs of employers and will train people for the skill gaps which exists now and in the future. It will help transform post-16 education and training and boost skills to create more routes into skilled employment in sectors the economy needs such as digital, engineering, manufacturing and clean energy. This will help more people secure well-paid jobs in their local areas and supporting local communities and the nation; and
- It will also improve the quality of training by ensuring providers are better run, qualifications are better regulated and their performance is assessed.
Main Elements of the Bill
- To put employers at the forefront of the post-16 skills system;
- To introduce the Lifelong Loan Entitlement which will allow individuals the equivalent of 4 years’ worth of student loan for level 4–6 qualifications with a flexibility to use them for colleges and universities anytime across their lifetime;
- To strengthen the system of accountability; and
- To put beyond doubt the ability of the Office for Students to determine minimum requirements for quality by reference to absolute performance levels for student outcomes.
What is the effect of the legislation?
The proposed legislation modifies the existing regulation-making powers in the Teaching and Higher Education Act (THEA) 1998 so as to:
- make specific provision for funding of modules of higher education and further education courses, and the setting of an overall limit to funding that learners can access over their lifetime,
- make clear that maximum amounts for funding can be set other than in relation to an academic year.
The government intends to bring forward further amendments at Committee stage, including any adjustments to Higher Education Research Act 2017 to reflect modular provision, and any other consequential amendments.
We recommend the HE sector monitors the progression of the Bill carefully.
Harpur Trust v Brazel
On 9 November 2021, the Supreme Court heard an appeal against the Court of Appeal (CA)'s decision that an Employment Tribunal (ET) was wrong to find that "part-year workers" (those working only part of the year) should have their annual leave entitlement capped at 12.07% of annualised hours.
Issue
Whether a worker’s right to paid annual leave is accumulated according to the working pattern of the worker and/or is pro-rated.
Facts
Brazel was a visiting music teacher who was engaged on a zero-hours contract to work during term times only. She worked between 32 and 35 weeks per year and her contract said that she was entitled to 5.6 weeks holiday per year (the statutory minimum). In 2011, Harpur Trust alternated the way in which they calculated her holiday pay by pro-rating the 5.6 weeks such that she was paid 12.07% (i.e. 5.6 x 100/46.4) for each week actually worked which it was argued that Brazel should be paid (i.e. 5.6 x 100/32) which would equal to 17.5% for each week she actually worked.
In 2015 Brazel brought proceedings before the ET as she claimed she had suffered unlawful deductions from her wages because of the way in which the Harpur Trust had calculated her holiday pay and the ET decided against her on this issue. However, she appealed to the Employment Appeals Tribunal (EAT), where she was successful.
We are now awaiting for a decision from the Supreme Court and suggest the HE sector monitors this decision.
As soon as the judgment hand-down date is confirmed, it will be published on Future judgments - The Supreme Court.
Dr H Korthals Altes (“Altes”) v University of Essex (“University”)
Issue
Did the ET err in its interpretation of Altes’s contractual provisions of her employment contract in permitting dismissal because of her capability before the end of the probation period without the application of Ordinance 41?
Facts
In 2017 Altes began working for the University. Her employment contract had a three-year probation period, which at the end she was entitled to apply for her position to be made permanent. The contract incorporated the university's ordinances, two important ordinances were:
- Ordinance 39 contained provisions concerning probationary staff and in particular 39(4) which deals with notice of dismissal; and
- Ordinance 41 provided safeguards to lecturers whose positions had been made permanent and limited the circumstances in which they could be dismissed.
In 2019 Altes was given notice of dismissal on the grounds, on balance, she was unlikely to make satisfactory progress against her probation targets before her probation period ended (Ordinance 39(4)). Altes asserted that Ordinance 39(4) only allowed for her contract to be terminated once her probation period ended, unless she had made an early application herself for permanency. Therefore in order for her to be terminated during her probation period for capability-related reasons a much more detailed dismissal procedure for ‘good cause’ would have needed to be followed under Ordinance 41.
The ET had interpreted the contract as not requiring the application of Ordinance 41 where the reason for dismissal is capability as the dismissal was before the end of a probation period.
EAT findings
On the 2 November 2021, the EAT dismissed the Appeal and held that that ET did not err in law in holding that the terms of Altes’s contract of employment (including incorporated provisions of the University’s Ordinances) allowed the University to terminate her contract because of unsatisfactory performance during her probationary period, without following the procedure for dismissal for good cause pursuant to Ordinance 4. Additionally, the conclusion was not only based on what meaning the contractual documents would convey to a reasonable person having all the relevant background knowledge, it also followed employment common sense.
Right to work (RTW) checks – latest update
New guidance was published on 31 August 2021 setting out how employers should conduct right to work checks and specific actions to be taken to prevent liability for a civil penalty. An employer's guide to right to work checks (publishing.service.gov.uk).
We originally wrote about this in our last quarterly Employment Eye: Focus on Higher Education – Summer 2021. In light of the continuing COVID-19 pandemic, there was a last minute announcement on 26 August 2021 to extend the deadline of adjusted checks. In the interim, the Home office plans to develop a digital solution to include those who cannot use the existing online RTW system. It is likely this deadline will be extended again if this RTW system is not put in place by then.
Adjusted Procedures extended from 31 August 2021 to 5 April 2022
Therefore employers can continue to carry out adjusted RTW checks in a way that takes into account the ongoing impacts of the COVID-19 pandemic.
Under the adjusted RTW procedure, employers should take the following steps:
- Ask the prospective or existing employee to provide you with a scan or photo of their RTW documents;
- In a video conference ask the prospective or existing employee to hold up their original documents;
- Check the documents shown in the call against the scan/photo received and check against the physical appearance of the person on the call;
- Mark the copies with the printed name of the person conducting the check and the wording ‘adjusted check undertaken on [date] due to COVID-19’
- Additionally, those that required a follow-up Right to Work check using the emergency measures should be marked as: “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.”
You do not need to carry out retrospective checks on employees who had a COVID-19 adjusted check between 30 March 2020 and 5 April 2022 (inclusive). This reflects the length of time the adjusted checks have been in place and supports business during this difficult time.
You will maintain a defence against a civil penalty if the check you have undertaken during this period was done in the prescribed manner or as set out in the COVID-19 adjusted checks guidance. However, any individual identified with no lawful immigration status in the UK may be liable to enforcement action.
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