Employment Tribunal Claims: Risk Reduction For Academy Trusts And Schools

A practical guide for academy trust and school leaders

Receiving an employment tribunal claim from a current or former member of staff can be daunting for any employer but there are particular practical considerations for academy trust and school leaders to be aware of in order to mitigate risk and avoid pitfalls. The risk of employment claims looks set to increase when the Employment Rights Bill comes into force and now is a good time for schools and trusts to improve their preparedness for claims.

We regularly advise education sector clients on employment tribunal claims and set out here some key pointers for academy trust and school leaders based on our specialist experience. If you would like specific advice on an employment tribunal claim or on improving your processes to mitigate the risks of claims, do not hesitate to get in touch.

Responding to tribunal claims during school holidays

It is essential to have systems in place to pick up claims sent during school holidays. This is because of the short timeframe for responding to an employment tribunal claim: 28 calendar days from the date of the Notice of Claim from the tribunal. There is no automatic extension of this timeframe for holiday periods. While it is possible to apply for an extension of time, the tribunal may not consider this application for some weeks and it is always advisable to do what you can to submit a response by the deadline.

To avoid this issue, it is sensible to ensure that Acas and the Employment Tribunal have the correct postal and email address for the school or academy trust, and that this address will be regularly monitored during the holiday period by someone with an appropriate level of authority to open the communication and take initial steps.

It is not uncommon for claims to be wrongly addressed to individual schools within the trust when the academy trust itself is the correct respondent. Having systems in place to regularly check for key correspondence sent by post or email to individual schools during the holidays will reduce the risk of a claim going astray or coming to light without sufficient time to meet the deadline.

Informing your insurer and getting legal advice

Consider notifying the academy trust or school's insurer as a matter of priority, as legal expenses insurance may apply to cover some or all of the legal costs of defending and settling the claim, and possibly financial awards made by the tribunal.

Many academy trusts are members of the Department for Education's risk protection arrangement for schools (RPA) and should be aware of the notification requirements which apply. Academy trusts should also be aware of the annual limit on costs which the RPA will cover.

We recommend that you seek legal advice promptly on receipt of the claim in order to assess its merits and to ensure you put forward a response which includes the key elements of the defence.

Gathering evidence from school systems for tribunal claims

Take steps to secure documentary evidence which might be relevant to the claim. This includes documents, emails, texts, social media messages and posts, databases, recordings and transcriptions.

Employment tribunal disclosure rules require both parties to disclose to each other and to the tribunal all documents which are relevant to the case, including those which may not support their position and those which support the case of the other side.

There are some documents which will not be admissible as evidence, including those which are without prejudice as they are a genuine attempt to resolve an existing dispute and those which are legally privileged such as advice provided by a solicitor.

As well as documents specific to the employee, you should assemble other relevant organisational documents such as policies, contracts and professional standards (for example Teachers Standards and Keeping Children Safe in Education).

Protecting children's identity during tribunal proceedings

In some cases, there may be concern that information about a child will be made public as part of the tribunal process. Academy trusts and schools should seek legal advice as to whether there is scope for an application to the tribunal for an anonymity order to protect the identity of the child, for example where safeguarding allegations have led to dismissal.

You should also ensure that the names of children are redacted from documents to be included in the tribunal bundle, using an anonymous key where it is necessary to indicate individual children.

Take care to ensure that any secure data storage and transfer protocols are applied to documents assembled in relation to the claim which contain high risk and special category personal data.

Selecting key witnesses for tribunal defence

Consider who will be relevant witnesses to defend the case. This might include those staff who were involved in any relevant process and any trustees or governors who made key decisions following hearings and appeals. Where there are discrimination or whistleblowing concerns it is usually helpful for the tribunal to hear firsthand from individuals who are alleged to have treated a colleague detrimentally.

Academy trusts and schools should be aware of the potential for stress and additional workload for witnesses involved in the tribunal process and put in place support for employees. Employment tribunal proceedings can take a very long time to conclude, with more complex claims taking around 12 months or more.

Reputational risks for academy trusts and schools

Academy trusts and schools should be alive to the reputational risks of the tribunal process. It is not uncommon for other colleagues to be aware of tribunal claims and proceedings and this can have a negative impact on employee relations which may lead to reputational risk. Trade unions may support the claimant in their claim and this can on occasions lead to dispute and contentious industrial relations more broadly. Parents and the media may also show an interest in the outcome of tribunal proceedings.

Tribunal hearings are open to the public and can be attended by students, the press, trade union members and other interested parties. Academy trusts and schools should be aware that those attending can request copies of documents which form part of the evidence considered by the panel though this must not affect which documents are submitted to the tribunal.

Tribunal judgments are accessible on a searchable gov.uk database and can include significant detail of the case and the names of those involved.

Settlement considerations for academy trusts and schools

Academy trusts will need to refer to the provisions of the Academy Trust Handbook dealing with severance payments when considering entering into a settlement agreement or COT3 to settle an employment tribunal claim. The funding agreement between an academy trust and the Secretary of State (the master funding agreement in the case of a multi academy trust) requires the academy trust to follow the requirements of, and have regard to the guidance in, the Academy Trust Handbook. Academy trusts and schools should also ensure that any decision to offer a settlement is authorised and follows your financial decision-making protocols, for example, in your scheme of delegation.

It is sensible to seek legal advice on the content of any agreed reference wording to be set out in a settlement agreement or COT3 as academy trusts and schools must comply with safer recruitment procedures and be aware of the need for references to be accurate and not misleading.

It is important too to be aware that settlements should not be used to silence allegations of harassment or discrimination or to deter whistleblowing.

Understanding retaliation risks in academy trusts and schools following tribunal proceedings

Academy trusts and schools should be aware that employees can have special legal protections where they have brought a claim or supported a colleague in their claim. Risks of related claims and the appearance of bias can be reduced by taking steps to protect staff from retaliation and victimisation, for example by adjusting line management and decision-making protocols for appraisals, promotions and pay reviews.