Education Law Speed Read – 30/04/18

Requirements for publishing facility time information

This week we focus on the requirement for public sector bodies (including schools and academies) to publish certain information regarding the amount of time off taken by their employees for trade union duties and activities (known as facility time).

The requirement to report facility time has been in existence since 1 April 2017. Only those bodies that meet the minimum criteria for employee numbers during a “relevant period” (defined as any 12 months beginning with 1 April each year) will need to provide such information.

In general terms, schools and academies with more than 49 full-time employees for seven full months within any relevant period are required to publish:

• The number of employees who were relevant union officials during the relevant period;
• The percentage of their time spent on facility time;
• The proportion of the employer’s total pay bill spent on facility time; and
• The number of hours spent by the relevant union officials on paid trade union activities as a percentage of total paid facility time hours.

The regulations contain a standard form for the data to be published in to ensure that it is uniform across employers.

Effect

This information must be placed on the school website before 31 July in the calendar year in which the relevant period ends. Therefore, the first deadline for publication will be 31 July 2018.

While the first reports are not due until summer 2018, you may face difficulties if you have not been collecting such data throughout the last year. Moving forward, you should collect data around which employees are taking facility time, how much, and whether this is statutory paid time to perform duties connected to the workplace, or trade union activity time paid by agreement.

This may pose a challenge for schools and may involve co-ordinating with recognised trade unions and affected employees, both to share information and to smooth relations, as the additional scrutiny has been criticised by unions as politically motivated and is unlikely to be welcomed.

Morris-Garner and another v One Step (Support) Ltd

In Morris-Garner and another v One Step (Support) Ltd the Supreme Court clarified the law on ‘negotiating damages’.

What is negotiating damages?

‘Negotiating damages’ is the money that a claimant would reasonably have demanded in order to allow a release of a covenant in a contract i.e. if, instead of breaching a contractual clause, the parties had negotiated a release from it, the amount which would have been paid.

Background of the case

The defendants entered into a restrictive covenant that prohibited them from soliciting One Step’s customers or competing with the business for a period of three years. Subsequently, the defendants set up a competing business in the restricted term in breach of contract.

High Court

One Step brought a claim for breach of the restrictive covenants. The Court at first instance found for One Step, and as it would be difficult to quantify their actual financial loss, they allowed One Step to elect for negotiating damages.

Court of Appeal

The defendants’ appealed against the decision to allow negotiating damages.

The Court of Appeal held that test for negotiating damages was whether it was a ‘just response’ and that negotiating damages were not restricted to ‘exceptional’ cases where there was no ‘identifiable financial loss’ and so it dismissed the appeal.

Supreme Court

The defendants appealed again to the Supreme Court.

The Supreme Court have now overturned the Court of Appeal’s decision and held that negotiating damages were not available for the loss of profits and goodwill – which form the basis of many breach of restrictive covenants cases.

The core test proposed by the court when determining whether negotiating damages are available was that, where the breach “results in the loss of a valuable asset created or protected by the right which was infringed, as for example in cases concerned with the breach of a restrictive covenant over land, an intellectual property agreement or a confidentiality agreement”, then negotiating damages may be appropriate.

However, the court found that the loss of profits and goodwill alleged by One Step were not in the nature of the loss of a valuable proprietary asset, created or protected by the right which was infringed. Although difficult to quantify, the losses could be proven in a normal conventional manner.

As a result, negotiating damages were not available to One Step, and they would have to prove their losses.

Comment

In an employment context, you may see some agreements where it says that a covenant (such as confidentiality) is so important, that if it is breached then the loss has been assessed in advance as £XXXXX, which is how much money the employer would have demanded for the information to be made public.

This case shows that ‘negotiating damages’ may still be used for confidentiality clauses but it may now be harder (but not impossible) to use clauses for non competition or solicitation covenants.

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.