Education Law Speed Read – 09/10/17
9th October, 2017
This week we look at plans to measure students' creativity and imagination and we feature a case involving the role of previous incidents in dismissal cases.
Future tests to measure pupils’ creativity and imaginative ability
Teenagers worldwide could be ranked on their creative thinking, under proposals for the 2021 Programme for International Student Assessment (PISA) tests.
The PISA tests currently measure how pupils do in maths, science and reading, but now an advisory group have been tasked with coming up with a definition of ‘creative thinking’ that can be assessed, and to recommend how to assess it.
“Creative thinking is a multi-faceted concept involving the generation and refining of ideas as well as the processes by which such thinking can be improved,” Professor Lucas, who is director of the Centre for Real-World Learning (CRL) said.
The idea is not to create another subject but to innovate pupils and to find a way to link subjects together. PISA is keen to assess pupils in other disciplines other than maths, reading and science having previously assessed pupils in collaborative problem-solving in 2012 – the results are yet to be published.
This announcement comes following last month’s call from the Education Policy Institute (EPI) thinktank for ministers to recognise the “increased pressure” on arts subjects due to the EBacc and squeezed funding after it found that GCSE entries for the arts subjects had dropped to their lowest level in a decade.
It will be interesting to see how the assessment and subject areas of future generations’ education develop over the coming years.
NHS 24 v Pillar
Does the inclusion within an investigatory report of similar incidents which had not been treated as disciplinary matters make the dismissal unfair?
Facts
Mrs Pillar (P) was a band 6 graded Nurse Practitioner employed to triage patient calls. In 2013 P directed a patient describing symptoms of a heart attack to an out of hours GP rather than the emergency services, resulting in a Patient Safety Incident (PSI).
P had two previous PSI incidents; the first in August 2010 and the second in July 2012. Neither of the previous incidents had been treated as disciplinary matters. Despite this, the previous incidents were included within P’s disciplinary investigatory report. P was dismissed for gross misconduct.
The Tribunal decided that inclusion of details about the two similar incidents in the investigative report prepared for use by the dismissing officer fell foul of the ‘reasonable investigation requirement’ test. In essence here, the Tribunal concluded that too much information had been gathered and included.
NHS 24 appealed the Tribunal’s decision and on appeal, the EAT found that as the employment tribunal had found that it was reasonable of NHS 24 to dismiss P on the basis of the material before it, it was both inconsistent and perverse to go on to conclude that the dismissal was unfair. When put into context, the dismissal was a result of a final serious incident where patient safety was put at risk.
The EAT found that the fact that previous incidents had taken place was relevant material as part of the background information required by NHS 24 in deciding how to deal with the December 2013 PSI.
The principal reason for the dismissal was the December 2013 conduct which was found to be a lack of clinical competence. There was no “totting up” exercise. If only the details of the training, support and coaching were provided without the reasons why i.e. the previous PSI incidents, it would have given a wholly inadequate and misleading picture against which to assess the risk of a recurrence of a failure to provide a safe service.
Comment
Previous similar incidents which come to the attention of an employer which are substantial and relevant can be taken into account as part of the investigating process, even if no disciplinary action was taken at the time in relation to the incidents.
Where the investigation and disciplinary officer are carried out by different individuals then their respective roles differ. The role of the dismissing officer is to consider the material before them. The role of the investigation officer is to furnish all relevant material to the dismissing officer. The reasonableness of the investigation is relevant only where it results in an absence of proper information being put forward to the disciplinary stage.
If you have any queries on the above and how it will affect you, please do not hesitate to contact a member of our education team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
This page may contain links that direct you to third party websites. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.
