Where does employee responsibility end and employer liability begin, asks Colin Butler
Teacher stress is in the news again. For employers, it can be expensive, and for teachers, it can mean professional ruin. Employers have a duty of care towards their employees. But what is "duty of care"?
No legislation contains a comprehensive formulation of "duty of care", as it is part of judge-made or common law. A duty of care is a legal duty. It means you have to take reasonable precautions to avoid harm to any other person who might reasonably be expected to be affected by your acts - and failure to act. Breaching a duty of care is negligent and may provide a legal basis for damages. The duty of care is expressed and amplified in the Health and Safety at Work Act.
The duty of care for teacher employers includes not just a safe working environment, but safe systems of work, too - matters such as excessive workload, conflicting responsibilities, inadequate management, insufficient resources, bullying of staff and inadequate support must be addressed, as well as the physical safety of the premises. The law recognises the benefit gained from the employee's labour and balances that by protecting the employee against exploitation.
Teachers should always speak up if they feel at risk, but duty of care requires that the employer's senior management, including heads, be active in identifying and addressing all risks. They cannot just wait for things to happen. Nor can they pile things on, hoping that no onewill complain: potential liability is always there. Heads themselves are under severe pressure. In law, governing bodies and local education authorities have an active responsibility to address risks faced by heads. It is a responsibility to be taken seriously.
Teachers often fail to distinguish between heads, governors and employers. LEAs are the employer in voluntary-aided and foundation schools. Where community schools have delegated budgets, governors have powers with health and safety implications and must exercise them with the same care as employers. In such circumstances heads can be pressured by dual accountability, and governors and LEAs must take account of this.
In general, if heads of community schools feel at risk, they should talk to their LEA as employer. That may mean the authority taking issue with the governing body. Heads of voluntary-aided schools should speak to their chair of governors - although the LEA, which retains influence in such schools, should not necessarily be excluded. Heads of foundation schools are rather more dependent on their governors.
Teachers and heads who feel at risk should speak up immediately. When things look serious, it is in everybody's interest that the parties involved have clear professional guidance from the outset. Not when a crisis is reached.
Dr Colin Butler is senior English master and NUT representative at Borden grammar school, Sittingbourne, Kent. He is grateful for the help of the NUT's legal services with this article