Worldwide: Education In Focus - July 2015

A broad mix of investors, operators (global, regional and local), consultants and head teachers considered a number of topical issues facing the K-12 education sector in Abu Dhabi. The agenda included:

• Regulatory developments
• Staffing issues such as recruitment and retention of staff and use of supply teachers
• Delivery of Arabic and Islamic studies programmes
• SEN provision

These topics were discussed in an open forum which produced a lively and engaging debate between all the stakeholders, moderated by Ross Barfoot, Partner and Head of Clyde & Co's Education practice. Key members of Clyde & Co's education team were also in attendance to contribute to the debate.

The discussion on the evening proved invaluable for those attending and was an opportunity to share experiences with others and compare approaches to common challenges. Ross Barfoot noted that "the evening highlights that Clyde & Co are thought leaders in the regional education sector and can add real value to our education clients".

Following on from the success of both the Abu Dhabi and Dubai education roundtable dinners, we look forward to hosting another roundtable event in Doha in the near future.

VOCATIONAL TRAINING IN KSA

By Rebecca Ford, Sara Khoja and Samantha Ellaby

The Saudi Arabian government is investing heavily in vocational and technical training and aims to create 100 technical colleges by 2020 under its reform program. From 2010 to 2014, government expenditure on technical and vocational training rose by 41.6% to USD 6.1 billion.

The government has set up the Technical & Vocational Training Corporation (TVTC) to concentrate on the development of vocational training in the Kingdom. The Colleges of Excellence have also been established to be the leading authority for applied training in the Kingdom. The key responsibilities of both organisations is to create a skilled labour force through collaborations with industries.

Colleges of Excellence has already collaborated with 12 global partners for setting up 27 such technical colleges, which will be managed by various international applied technical and educational institutions from the US, Canada, the UK, Germany, the Netherlands, Spain, Australia and New Zealand.

Such collaborations are an excellent opportunity for education providers who are looking to enter the market and have the potential to be extremely lucrative.

For example, in April 2014, it was reported that a number of UK education providers had won contracts worth roughly USD 1,341 million to provide 12 technical vocational colleges in the KSA. Once the colleges reach capacity, it is envisaged that they will train 24,000 students per year, including 14,000 women.

We have advised a number of educational institutions in connection with the collaborations. The terms of the collaboration agreement should be carefully considered, reviewed and negotiated to ensure that the educational institution is not subject to performance indicators and objectives which may in practice be difficult to meet.

Careful consideration will need to be given to staffing the new colleges. The Saudi government has put in place a number of helpful measures to assist with this issue. Ajeer enables the dependants of expatriate workers in the KSA to work in private schools, subject to certain conditions, without being sponsored by the school. This measure is very welcome and should significantly increase the number of females entering the market. Ajeer also enables institutions and colleges to effectively borrow employees from other entities for a period of up to three months without being required to sponsor the employee.

Educational institutions entering the market will also need to keep in mind the increasing focus on Saudization. Targets or requirements to employ Saudi nationals will likely apply both under the terms of the commercial agreement with Government agencies and also under the general employment law provisions. Under the Nitaqat system, companies are assessed based on the number of Saudi nationals it employs and will suffer disadvantages (including being unable to benefit from the Ajeer system) if it fails to recruit the required number of local nationals assigned to its business by the Ministry of Labour. The more compliant the company, the easier it will be to obtain new work visas (Iqamas) for expatriates. Staffing educational institutions with the sufficient number of Saudi nationals can be challenging, particularly given the need for segregation between males and females and the low numbers of trained and available national female teachers.

A LESSON IN TRADEMARK PROTECTION

By Harriet Balloch and Nicole Giblin

Educational establishments work hard to build reputations as trusted and leading education providers within local communities and globally. Investing in trade mark protection can ensure that exclusive rights are secured in the name and logo of the educational establishment at a country level and internationally, by filing for protection on a country by country or regional basis.

1. Globalisation of education providers

As a result of an increased demand for top performing schools internationally, there has been a recent trend towards the globalisation of the educational sector. For example, a number of outstanding British and US schools and universities, have set up campuses in new markets, particularly in China and the Middle East.

As part of these arrangements, establishments usually enter into licensing agreements with local partners, authorising the use of the school's intellectual property rights, including the name and logo of the school, together with the curriculum, teaching materials and the school uniform. Some of these assets can be protected through IP rights, such as trade marks, copyright and registered design rights.

Given that the right to use the name and logo of a school will be core to any licensing deal, it is key to ensure that adequate trade mark protection is secured in advance of entering into licensing agreements. As part of this protection strategy, it is important to consider whether local language variations, such as Arabic or Mandarin versions of the mark, need to be protected.

2. Why secure trade mark protection?

Registering a trade mark gives the owner the exclusive right to that trade mark, in relation to the goods and services listed on the certificate, in the country of registration.

Accordingly, a trade mark registration can prevent competing schools, nurseries or universities from using the same or a similar trade mark.

By way of example, if a nursery has established an outstanding reputation, a third party setting up a new nursery may seek to use a trade mark which is the same or very similar to the first nursery's brand, in an attempt to confuse prospective parents and students into thinking that the new campus is associated with the first nursery. Trade mark registrations can be used to prevent third parties from seeking to trade off the reputation of successful educational brands, without permission.

Trade mark protection also enables establishments to develop their brands, by attracting investors or generating alternative revenue streams, through licensing arrangements in new markets.

3. Trade mark searches

Before applying for and/or using a trade mark, it is important to ensure that there are no conflicting prior brands being used or registered in the countries of interest.

Trade mark clearance searches should be undertaken prior to the launch of a new brand and before expanding that brand into other markets. Conducting searches can quickly reveal whether the relevant trade mark is free to use or whether use of the mark will infringe the prior rights of a third party.

Given that significant time and money is invested in branding exercises, undertaking clearance searches early can avoid unnecessary costs being incurred in connection with a forced re-brand.

4. The application process

Assuming the results of searches are clear, applications can be filed to protect the trade mark in the countries of interest. Before filing the applications, it is necessary to decide which goods and services should be protected in relation to the trade mark.

All goods and services are categorised into 45 "classes". Educational establishments usually look to secure protection in the following core classes:

• Class 41 which covers education and training services
• Class 16 which covers teaching materials and books

Universities and other higher educational establishments may also wish to protect their trade marks in relation to Class 42, which covers research and development services.

Any establishments which are considering opening campuses in new markets should secure protection for their trade marks before entering into discussions with potential local partners. Adopting this approach will ensure that they are in a position to licence the use of the school's trade mark in that country.

LEGAL AND PRACTICAL DIFFICULTIES WITH ENGAGING SUPPLY TEACHERS IN THE UAE AND QATAR

By Rebecca Ford, Sara Khoja and Samantha Ellaby

Schools in other jurisdictions rely heavily on the services of supply teachers to cover periods of leave. This article summarises the legal and practical difficulties with engaging supply teachers in the UAE and Qatar together with some suggestions for dealing with those difficulties.

Generally speaking, in order to lawfully work in the region, all non-GCC nationals must have a valid residence visa and work permit authorising them to do so. This poses considerable issues for schools which may need to cover teaching absence at short notice and need to have the flexibility to engage individuals to do so on a short term and ad hoc basis.

We are aware that some schools engage the services of expatriates who are sponsored by their spouses for residency visa purposes on an ad hoc basis to cover periods of leave. In our experience, such individuals are not generally sponsored or employed by the school, are often paid in cash and do not receive the usual statutory benefits such as payment for annual leave or sick leave.

Such an approach is not strictly lawful under the immigration rules in the UAE and Qatar. A residence visa sponsored by a family member does not authorise that individual to work. In order to lawfully work for a school, an individual must have a work permit sponsored by the school. As part of this sponsorship, the school will need to enter into an employment contract with the individual and will assume the usual employment obligations and responsibilities (including to pay annual leave, sick leave, end of service gratuity and any other statutory benefits).

A work permit sponsored by a particular school only permits the individual to work for that school. This means that, unlike in some jurisdictions, an individual cannot lawfully provide supply services to a number of different schools on an ad hoc basis.

In Saudi, the government has addressed this issue to a certain extent with the introduction of the Ajeer system which, subject to certain conditions, enables the dependents of expatriate workers to work in private schools without having their sponsorship transferred to and/or being employed by the school and enables institutes and colleges to obtain Temporary Work Notices to enable personnel of one entity to provide services to another.

Until such measures are introduced in the UAE and Qatar schools will need to consider other options for covering leave and robustly manage periods of absence to reduce the need to rely on supply teachers.

Practical suggestions for mitigating the difficulties

Covering staff

• Employ staff on a permanent basis specifically to cover periods of absence. To reduce costs, such staff could be paid a nominal basic wage and an uplift per lesson covered. However, there would of course be a cost associated with obtaining a visa for such an individual and the individual would have the usual employment rights, including the right to annual leave and an end of service gratuity payment

Sickness absence

• Have a sickness absence policy which clearly informs employees of the sickness absence reporting requirements
• Closely monitor sickness absence and, if there are any patterns, for example repeated sicknesses immediately following a weekend, discuss this with the employee so that they are aware that the school is alert to the issue
• Require employees to attend a return to work interview after all occasions of absence, however short, to discuss the reason for their absence
• Contractually require employees to submit a medical note for all cases of sickness absence, however short, or for periods of, say, more than 1 day

Maternity leave

• Under the relevant labour laws, there is no requirement for employees to commence maternity leave within a certain period of the expected date of childbirth or to notify the employer within a particular period of their intended return date. In the UAE, for example, an employee may, towards the end of the 45 day statutory maternity leave period, provide a medical report which states that they are unable to work for a further 100 days. This poses difficulties for schools when arranging suitable cover
• To mitigate this issue, schools could implement a maternity policy which stresses the importance of classes being covered and the need for the school to have as much notice as possible of the intended return date
• Encourage open dialogue between the school and the teacher throughout period of maternity leave
• Schools could also take steps to incentivise employees to return to work on the intended work date by, for example, offering a return to work bonus if they do so