From education to employment

Will this be a summer of content for colleges?

With summer upon us we consider what’s in store for colleges. Further Education establishments will be familiar with the criminal records checking regime in light of their duties to protect and safeguard their students, but may find it becomes easier to make an assessment of whether an applicant is suitable for the job in light of recent changes. Colleges may also find themselves defending fewer claims once employment tribunal fees are introduced. Finally, we look at two recent cases from the Employment Appeal Tribunal.

Disclosure and Barring Service

The Disclosure and Barring Service (DBS) handles requests for standard and enhanced criminal record checks, which can be requested or may be required for certain occupations and professions, including those working with under 18s. The position used to be that all convictions and cautions, whether spent or unspent, would be disclosed.

We reported back in February ( on a Court of Appeal case, which found that the disclosure of all convictions and cautions was, albeit in pursuit of the legitimate aim of protecting vulnerable persons and enabling employers to assess if someone is suitable for the job, ultimately disproportionate and therefore in breach of Article 8 of the European Convention on Human Rights (right to respect for private life). The Supreme Court granted the government’s application for leave to appeal and will hear the case on 24 and 25 July 2013.

In the meantime the government introduced legislation removing certain cautions and convictions from criminal record certificates issued after 29 May 2013. Colleges can be reassured that the DBS maintains a list of serious offences that will never be filtered from certificates.

Employment Tribunal Fees

The summer brings further changes to the Employment Tribunal. Currently employees who bring claims against their employers do not have to pay fees for doing so. This is due to change from 29th July 2013 when a fee system is introduced and claimants will be required to pay an issue fee and a hearing fee or make an application for fee remission (the applicant will have to meet eligibility criteria regarding their capital and income for their fee remission application to succeed).

It remains to be seen whether and to what extent fees will deter claimants from bringing claims in the tribunal. The introduction of fees, coupled with the introduction of a paper-sift stage by employment judges to weed out claims with no reasonable prospect of success, may result in colleges seeing a decline in the number of claims they are forced to defend.

Unison is challenging the introduction of fees by way of a judicial review. The union is arguing, amongst other things, that despite the introduction of a fee remission system the fees are indirectly discriminatory to women and that it will make it at least excessively difficult for employees to exercise their rights, contrary to EU Law. So watch this space.

Employment Appeal Tribunal cases

Finally, we consider two recent Employment Appeal Tribunal cases.

In City and County of Swansea v Gayle UKEAT/0501/12, the EAT found that an employee who was caught going to the leisure centre when he was meant to be working and subsequently dismissed was not unfairly dismissed. The employer had carried out a thorough investigation including obtaining video surveillance footage of the employee outside the leisure centre. The footage was taken in a public place at a time when the employee was meant to be working. The employee could not reasonably expect privacy in this situation. The EAT also held that even an unnecessarily thorough investigation is unlikely on its own to make the dismissal unfair.

Readers may be aware that if a tribunal finds an employee has been unfairly dismissed it may in some circumstances increase the employee’s compensation where the employer has failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. The code however does not explicitly say if it applies to dismissals which are for “some other substantial reason”. In Lund v St Edmund’s School, Canterbury UKEAT/0514/12, the EAT found that the ACAS code should be followed even where the dismissal was for “some other substantial reason” because the focus should be on the reasons that led to disciplinary action, not the outcome. Therefore if the employer contemplated dismissing the employee for misconduct or performance issues they should apply the code.

It would be prudent for employers to comply with the ACAS code in situations where their disciplinary procedures are invoked, as failure to comply can lead the tribunal to order an increase of up to 25% on the claimant’s compensation should they successfully claim unfair dismissal.

Matt Kelly is a partner at Thomas Eggar, the law firm

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