In this issue, we start by looking into the employment issues and legal risks of having a high turnover in school staff. This article also covers the legal obligations of schools hiring agency supply staff.

We also look at the key elements of the DfE updated and consolidated guidance on external reviews of governance and consider why academy trusts need to manage conflicts of interest and what this means for them in practice.

Our employment law solicitor, Alacoque Marvin talks us through the updated guidance on special severance payments for academy trusts and what the additional requirements are for academy trusts. We also highlight the case of Flatman v Essex County Council and how the lack of manual handling training in lifting a disabled pupil was a fundamental breach of contract.

More regular Covid-19 updates and what that means for staff are posted to the news page on our website and linked through Twitter and LinkedIn.

As always, we really welcome feedback and suggestions for further topics that may be of interest to you, so please get in touch.

School staffing and the risks of the revolving door

What are the legal risks of high staff turnover and reliance on agency staff in schools?

School employers have reported a higher level of staff turnover in recent years. Coupled with this, high levels of staff absence, particularly since the start of the Covid pandemic are an ongoing concern. This has led many schools to rely on an increased number of transitory staff, including agency supply staff. In this article, we consider the employment law considerations for school employers facing these staffing challenges.

This article focuses on employment law issues, but in doing so it is important not to lose sight of the disruption caused to the quality of education by high staff turnover.

Crisis – what crisis?

Many schools and trusts were facing a staffing crisis in certain subjects and at certain management levels in the years before the Covid pandemic. The drivers for high turnover of teaching staff are many and varied. A House of Commons Library Briefing Paper from November 2021 Teacher recruitment and retention in England provides a useful overview of some of the longer-term issues impacting on teacher recruitment and retention. Unsustainable workload, government policy and a lack of support from leadership top the list of reasons given by those leaving the profession. Unsurprisingly, teaching staff mobility between schools is more likely where staff are younger, on fixed term contracts, and are not in leadership positions. Schools in deprived areas are more likely to lose staff to other schools.

The Covid pandemic may initially have put a damper on staff mobility, but it seems now that some Covid-related factors, such as the so-called "Great Resignation" and higher levels of long-term absence are now putting further pressure on school staffing.

Supporting your stalwarts

Good induction, management, on-going support and appraisal are key to establishing and developing a happy and high-performing staff team. This can be a real challenge for established staff and leaders where colleagues are new and/or transitory. And this in turn increases the risks of employment law claims.

It can be easy to overlook the impact, particularly on your long-serving senior and middle managers of an ever-changing and piecemeal staff team. These demands can lead to complex grievances, conflict between staff, work-related stress and long-term absences. Pro-active support for these lynch-pins in your team is vital to reduce the risk of them burning out, moving on, and/or raising formal grievances and claims. Staff with two years' service could resign and bring a constructive unfair dismissal claim if they consider that the demands upon them were so unreasonable that they were in breach of contract.

Legal risks from staff with less than two years' service

It is a popular myth that staff who do not have two years' service cannot bring employment tribunal claims. Schools with high staff turnover should be aware that there are a number of claims which can be brought before that point.

Unfair dismissal claims based on "blowing the whistle", raising health and safety issues, trade union membership, or statutory rights such as exercising the right to be accompanied to meetings can all be brought without two years' service.

The usual cap on compensation for unfair dismissal claims of one year's gross salary does not apply when an employee is found to have been dismissed for raising health and safety issues or for whistleblowing.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.