Employment law

19th March 1999 at 00:00
Sacked too soon

A local education authority acted unlawfully in sacking a teacher immediately after governors at her school held a disciplinary hearing but before they had heard her appeal, the Employment Appeal Tribunal has ruled.

The NASUWT, the second biggest teachers' union, which represented the teacher, did not challenge the decision to sack her for gross misconduct. But the union's lawyers successfully argued that under Schedule 14 of the 1996 Education Act, she remained a Devon County Council employee entitled to full pay until the final outcome of her appeal was known.

She has now received back pay for the period between the day the governors of Brixington Infants' School informed her of her summary dismissal and of her right to appeal and the day of her effective dismissal - after an unsuccessful appeal - almost three months later.

The appeal tribunal's decision, which sets a legal precedent, means that teachers have greater employment protection than other groups of employees. The general position, developed through case law, is that employees can lawfully be sacked without notice for gross misconduct before an appeal. If their appeal succeeds, they can then seek reinstatement.

The Devon case also casts some much-needed light over the peculiar employment position of teachers in locally managed schools, where governing bodies are responsible for staff discipline and other staffing issues but local education authorities remain the employers. Mr Justice Lindsay, who chaired the appeal tribunal, confirmed that the governors of a locally managed school cannot dismiss a teacher. They can only, in the words of the 1996 Act, "determine" when a teacher "should cease to work there".

Since only a authorioty has the right to sack someone it employs, the tribunal found that Devon County Council had acted unlawfully in delegating the power to dismiss teachers to school governors.

Welcoming the appeal tribunal's decision, Nigel de Gruchy, general secretary of the NASUWT, said: "We are convinced this is the correct legal position. Fortunately, most LEAs correctly interpret schedule 14 of the Education Act 1996. LEAs, such as Devon, which have previously breached the statutory provisions, will now be brought into line."

A goal for women

A woman physical education teacher and football coach who claims she was denied an advanced coaching licence because of her gender has won a sex discrimination case against the Football Association.

Vanessa Hardwick, the FA's county coaching representative for Berkshire and Buckinghamshire, went on the association's advanced football coaching licence course in 1996. She failed the final practical assessment, even though her marks were as good or better than those of some of the male participants who had taken the same course earlier that year. Only three women, compared to 1,500 men hold the licence.

Backed by the Equal Opportunities Commission and her union, the NASUWT, Ms Hardwick brought a successful sex discrimination case against the FA, which then appealed. In January this year, the Employment Appeal Tribunal upheld the original tribunal decision and refused the FA further leave to appeal. Another hearing will be held to agree damages.

Ms Hardwick, who plans to take the coaching licence course again this summer, is still waiting for an apology from football's ruling body.

Injury compensation

A former special needs teacher has been awarded pound;143,000 compensation for the long-term injury she suffered while doing her job.

Marjorie Etchells worked in a school for children with severe disabilities where she regularly had to lift and change incontinent pupils, and give them physiotherapy.

In 1992, after lifting a pupil, Mrs Etchells developed pain and swelling in one of her elbows. After a further incident when she and colleagues had to lift a pupil who weighed 10 stone, her symptoms grew worse until she eventually felt unable to carry on working. In July 1994, she took early retirement on the grounds of ill-health.

At the age of 55, Mrs Etchells did not manage to find another job, despite lowering her sights and looking for clerical work.

Leeds County Court found that her former employer, Bradford Metropolitan Council, had failed to provide suitable equipment or adequate training in lifting, and had ignored staff complaints about safety. A serious staff shortage at the school also meant that people with little or no experience of lifting were drafted in to help lift children.

Rejecting the defendant's argument that Mrs Etchells had been guilty of contributory negligence, the court awarded her pound;6,000 for pain, suffering and loss of amenity. The rest of her pound;143,000 award represents damages for loss of earnings and pension rights.

Boost for the disabled

Schools employing 15 or more people are now covered by the Disability Discrimination Act, which until December 1 1998 applied only to organisations with more than 20 employees.

The Act aims to prevent employers from treating workers with disabilities less favourably than others. As well as covering access to jobs, promotion and training, the legislation also requires employers to make "reasonable adjustments" to working conditions to allow disabled employees to carry out their jobs.

The rights of disabled employees will receive a further boost next year when the new Disability Rights Commission is set up. Operating in a similar way to the Commission for Racial Equality and the Equal Opportunities Commission, the new body will have powers to investigate disability discrimination and enforce the law.

"We wait to see how the commission is made up and how effective it is," said Janet Joule, solicitor for the Association of Teachers and Lecturers, which is pursuing several disability discrimination cases for members.

"But in principle it is to be welcomed because it is quite wrong that there are commissions for sex discrimination and race discrimination but not for disability discrimination. It would appear that disability was being treated less seriously."

Some employers, however, will still be able to get away with turning down applicants for jobs or promotion simply because they are disabled. To the disappointment of disability rights campaigners, small schools and other organisations with fewer than 15 employees will continue to be exempt from the Act.

* Information on disability issues and advice on employing disabled people is available from the Government's Disability Discrimination Act helpline. Tel: 0345 622633

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