Education Law Speed Read – 19/02/18

Changes to the professional skills test

On 12 February 2018, the schools minister Nick Gibb announced a number of changes to remove the financial and administrative barriers to the teaching profession. The changes, which are largely backed by the profession, will scrap the controversial lock-out period that currently prevents would-be teachers from retaking the QTS skills test for two years if they fail it three times. It is hoped the measures will boost the numbers of teachers entering the profession.

In summary:

• Candidates will now be allowed three attempts at passing the QTS skills test before incurring any cost and there will be no limit to the number of tests that a candidate can take. Candidates are still required to pass this test before they can begin their Initial Teacher Training; and
• The lock-out period which previously prevented candidates from re-taking the test for two years has been removed.

These new measures are immediately effective and will apply to all applicants who applied on or after 24 October 2017. The Government announced that refunds will be offered automatically to anyone who has already paid for the tests in this year’s recruitment cycle i.e. on or since 24 October 2017. The Government has also just confirmed that trainee teachers currently banned from retaking the test will be free to do so, and will be contacted shortly to be notified that their account has been unlocked.

Whilst this is seen as a sensible and pragmatic move which allows potentially good teachers who would otherwise have been kept out of the profession to begin their training, some commentators are questioning whether this will lower teaching standards. You will undoubtedly have your own view on this, but you may wish to consider the following:

• Improved training, support and staff mentoring – as the cost of training and developing existing staff is often cheaper than recruiting new;
• Set clear standards, targets and guidelines – so trainee teachers know what is expected of them;
• Crucially, ensure that there is a clear paper trail to evidence any actions taken;
• Review your performance management policies and procedures – to enable you to take informal and formal action if required;
• Review your contracts of employment and consider whether or not it is appropriate to include a probationary period and whether the performance management policies should be contractual or non-contractual (with the latter providing greater flexibility for the employer).

Donelien v Liberata UK Ltd (2018) 

In Donelien v Liberata UK Ltd the Court of Appeal upheld the decision that an employer did not have constructive knowledge of an employee’s disability as it had taken reasonable steps to ascertain whether she was disabled.

Facts

Ms Donelien (D) was employed by Liberata, as a Court Officer from 1999 until her dismissal in October 2009.

D’s poor attendance at work became a significant issue in 2008, when she took numerous short term absences and persistently failed to comply with Liberata’s absence policy. In the last year before she was dismissed, she had a total of 128 days of absence.

Although D explained that she suffered from hypertension and work related stress, the majority of absences related to colds, flu and other ailments.

In May 2009, Liberata asked Occupational Health (OH) to assess D to understand whether she had a specific underlying health issue, or a disability to establish if any reasonable adjustments would be required.

The OH report said that D did not have a disability. Liberata was not satisfied that the report comprehensively answered all of their questions so asked follow up questions, obtained a further OH report and reviewed correspondence from D’s own GP. D was obstructive throughout the process and refused to let OH contact her GP.

After considering the medical evidence, Liberata started disciplinary proceedings against D and she was dismissed for her absence record and failure to comply with Liberata’s notification policy.

Employment Tribunal 

D brought various claims against Liberata to the Employment Tribunal, including the failure to make reasonable adjustments.

It is a potential defence for an employer if it did not know, and could not reasonably be expected to have known, that an employee was disabled.

The Employment Tribunal found that D was disabled from August 2009, which was after the OH report had been issued but before she was dismissed. Consequently there was no issue as to whether Liberata had actual knowledge: the issue was whether Liberata had constructive knowledge of D’s disability and whether Liberata’s duty to make reasonable adjustments had been triggered.

The Employment Tribunal found that Liberata did not have constructive knowledge, and had taken all reasonable actions to determine whether D had a disability. D appealed to the EAT, who again found that Liberata they had no knowledge of D’s disability.

Court of Appeal  

D appealed to the Court of Appeal who held that the relevant test was whether the employer could have reasonably expected to know that the employee was disabled at the relevant time, and not whether the employer had taken every step possible to determine whether an employee was disabled.

The Court distinguished the current facts from the earlier case of Gallop v Newport City Council(2003) (where it was held that an employer could not rely solely on an unreasoned OH report and must instead come to their own view) because Liberata had been ‘presented with a great deal of unclear information’ from the Claimant, D had been obstructive in denying OH contact with her GP, and Liberata had taken further steps to clarify OH reports and seek further opinions. This was not a ‘rubber stamp case’.

Comment 

This case shows the importance of testing Occupational Health reports and taking all facts into account when reaching a decision on an employee’s health. If employers take a comprehensive and critical approach – it may provide them with a defence to a later claim.

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.