A raft of new employment rights are set to come on stream - and the going could get rough. Anat Arkin reports
The last two years have witnessed a quiet revolution in employment relations as new laws designed to strengthen employee rights have come into force.
Many of the changes proposed in the Government's Fairness at Work White Paper and now being gradually implemented under the 1999 Employment Relations Act give private sector employees rights that teachers and other public sector employees have had for years.
So, for example, the right to union recognition where the majority of a workforce wants it will not make any difference to the already highly unionised education service. But some of the other changes to employment law are beginning to affect the way schools manage their staff.
Unfair dismissal The measure that will perhaps have the greatest impact on schools is the reduction in the qualifying period for unfair dismissal, from two years to one.
This came into effect last June and is likely to lead to a drop in the number of teachers employed on temporary, one-year contracts.
In law, a failure to renew a temporary contract usually counts as a dismissal. So, unless a school has a genuine reason for employing someone - for just a year, for example, to cover a secondment - it may well have to justify its actions to an employment tribunal. With the maximum amount of compensation a tribunal can award for unfair dismissal now raised from pound;12,000 to pound;50,000, losing a case can be an expensive business for foundation schools and for local authorities, which pick up the tab when teachers are unfairly sacked from community schools.
But many headteachers and school governors in both types of school have yet to adjust to the new reality, according to Maureen Cooper, a director of EPM Ltd, the privatised education personnel service of Cambridgeshire County Council.
She says: "There is quite a culture in education of employing staff on a one-year, temporary basis and, because there was no risk attached to that in the past, it is going to take a while for people to understand that they will now have to deal with non-renewal of fixed-term contracts in a more considered way."
The teacher unions are expecting some schools to try to get around the effects of the shorter qualifying period for employment protection. "We are waiting for a rush of cases where teachers have been put on contracts of less than 12 months," says NASUWT assistant secretary Joe Boone.
But if there is a rush of these cases, it won't last long. A European Union directive, due to be incorporated into British law by July 10 2001, says temporary workers should not be treated less favourably than permanent workers, unless the different treatment can be justified on objective grounds.
The directive is expected to stop employers from deliberately using a succession of fixed-term contracts to get around employment protection legislation.
Unfair dismissals accounted for 44 per cent of all cases heard by employment tribunals last year. This proportion could fall when a new arbitration scheme, now out for consultation, comes into operation later this year.
Drawn up by the Advisory, Conciliation and Arbitration Service (ACAS) under powers granted by the Employment Rights (Disputes Resolution) Act 1998, the proposed scheme will apply only to unfair dismissal cases, and will provide an alternative to an employment tribunal hearing where both parties agree.
Once they have agreed, they will not be able to change their minds and go to a tribunal. The arbitration will be in private, with the arbitrator able to make the same awards as a tribunal. There will, however, be no right of appeal to the Employment Appeals Tribunal.
"The idea is that this will be a cheap and cheerful service where a third party will adjudicate on unfair dismissal without the full panoply of further investigative particulars, discovery and everything else that goes with it," David Cockburn, a leading employment lawyer, told a recent ACAS conference.
For schools and local education authorities, the attraction of sorting out claims quickly, cheaply and in private are obvious. But Jenni Watson, national secretary of Redress, which frequently represents bullied or sacked teachers, doubts if many will want to give up their right to a public hearing.
"In my experience, people usually go to employment tribunals, not for the money but to have somebody publicly recognise that they have been wronged," she says.
"In most cases, they have been wronged publicly and, therefore, the recognition of that has to be public too."
Measures designed to help people balance the demands of work and family life formed a key plank of the Fairness at Work proposals. Many schools already have "family friendly" working practices, including time off for staff needing to look after children and other dependants, but some schools could come into conflict with staff over the new parental-leave entitlement.
This gives parents the right to take 13 weeks' unpaid leave over a five-year period to look after each child born after December 15 1999.
Both men and women who have been with the same employer for at least a year are entitled to parental leave, which has to be taken in the first five years of a child's life or within five years of a child being adopted. Parents of a child with a disability can take 13 weeks' leave at any time until the child reaches the age of 18.
The regulations allow employers and employees to agree their own parental leave scheme, provided it includes these basic rights. If no scheme is agreed, the fallback position included in the regulations automatically applies - and it is this that is causing controversy.
Under the fallback scheme, employees must give 21 days' notice of their intention to take parental leave, and can have no more than four weeks off in any one year. This has to be taken in blocks of one or more weeks. New fathers can take time off immediately after their child is born or adopted. But employers can postpone the absence of other employees for up to six months if it is likely to be "unduly disruptive".
The fallback scheme specifically refers to education as an area where employers might need to postpone parental leave. This seems to mean that schools will be able to tell teachers to take unpaid parental leave during the school holidays when they would normally be paid. Since teachers are obviously highly unlikely to apply for leave on these terms, the teacher unions are calling for a reduction in the six month deferment period.
The National Employers' Organisation for School Teachers is about to launch a review of the national collective agreement covering teachers' employment conditions, including parental leave, and will not be discussing possible changes with the unions until this is completed.
"We have advised LEAs of the forthcoming review and we are trying to discourage them from making local level decisions," says Mike Walker, the organisation's assistant director.
Since last December, employees have had the right to take a reasonable amount of time off work to deal with emergencies involving dependants. A dependant is defined as the employee's child, husband, wife, parent or someone who lives with the employee as part of the family. Someone who relies on the employee for help - for example, an elderly neighbour - may also count as a dependant. There is no set limit to how much emergency leave employees can take or how many times they can be absent.
Not surprisingly, there are worries that some employees may try to abuse this leave entitlement.
"Our advice to schools is that it's far too wide and ambiguous to be workable," says Julie Davies, a member of the employment law team at solicitors Veale Wasbrough. "We suggest that schools negotiate a policy with their staff so that both employer and employee are clear as to what is covered by this new entitlement.
"The policy should state quite clearly that this is what the school feels would constitute an emergency, and any abuse of it would be a disciplinary matter."
Veale Wasbrough has produced a guide for schools to the new leave entitlements. As well as outlining the provisions for maternity, parental and emergency leave, and explaining how they affect schools, the guide includes model policies and question-and-answer sections to help schools deal with queries from staff (see panel for details).
New regulations based on the EU part-time workers' directive come into force on April 7. Intended to ensure that part-timers are not treated less favourably than full-timers in comparable jobs, the regulations say that part-timers are entitled to the same conditions of employment and hourly rates of pay as full-timers, unless there are objective reasons for treating them differently.
Schools will need to clarify part-time teachers' working hours if they are to avoid employment tribunal claims from part-timers who receive no payment for attending meetings or doing other work outside their usual teaching hours.
Working time regulations
The working time regulations, which pre-date the Employment Relations Act, set a limit of 48 hours on the average working week, unless employees agree to work longer.
This average is worked out over a 17-week period. Although teachers often work long hours, their average week usually comes to less than 48 hours because of school holidays interrupting the 17 weeks.
The regulations also giveworkers a right to a rest period of at least 11 consecutive hours in any 24-hour period. This could be an issue for schools that require teachers to come in early in the morning after attending a parents' meeting or other evening function that does not end until late.
The New Leave Entitlements: A Practical Guide for Schools is available from Veale Wasbrough, Orchard Court, Orchard Lane, Bristol, BS1 5DS. Tel: 0117 925 2020 Price pound;450 + VAT, which includes an hour's worth of advice, with reduced prices for small schools