Social media object: Array ( [0] => Array ( [social_media_icon] => facebook [social_media_link] => https://www.facebook.com/Veale-Wasbrough-Vizards-160416407331275 ) [1] => Array ( [social_media_icon] => twitter [social_media_link] => https://twitter.com/vwvlawfirm ) [2] => Array ( [social_media_icon] => linkedin [social_media_link] => http://www.linkedin.com/company/1289889 ) [3] => Array ( [social_media_icon] => link [social_media_link] => http://www.youtube.com/user/VWVLaw/ ) )
URL: string(3) "vwv"
Page object: WP_Post Object ( [ID] => 18659 [post_author] => 39 [post_date] => 2019-06-17 14:43:31 [post_date_gmt] => 2019-06-17 13:43:31 [post_content] => [post_title] => VWV [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => vwv [to_ping] => [pinged] => [post_modified] => 2019-08-02 10:50:05 [post_modified_gmt] => 2019-08-02 09:50:05 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.ie-today.co.uk/dashboard2/?post_type=marketplace&p=18659 [menu_order] => 0 [post_type] => marketplace [post_mime_type] => [comment_count] => 0 [filter] => raw )
News article object: WP_Query Object ( [query] => Array ( [post_type] => Array ( [0] => post ) [post_status] => Array ( [0] => publish ) [posts_per_page] => -1 [orderby] => date [order] => DESC [tax_query] => Array ( [0] => Array ( [taxonomy] => post_tag [field] => slug [terms] => vwv ) ) ) [query_vars] => Array ( [post_type] => Array ( [0] => post ) [post_status] => Array ( [0] => publish ) [posts_per_page] => -1 [orderby] => date [order] => DESC [tax_query] => Array ( [0] => Array ( [taxonomy] => post_tag [field] => slug [terms] => vwv ) ) [error] => [m] => [p] => 0 [post_parent] => [subpost] => [subpost_id] => [attachment] => [attachment_id] => 0 [name] => [pagename] => [page_id] => 0 [second] => [minute] => [hour] => [day] => 0 [monthnum] => 0 [year] => 0 [w] => 0 [category_name] => [tag] => [cat] => [tag_id] => 2726 [author] => [author_name] => [feed] => [tb] => [paged] => 0 [meta_key] => [meta_value] => [preview] => [s] => [sentence] => [title] => [fields] => [menu_order] => [embed] => [category__in] => Array ( ) [category__not_in] => Array ( ) [category__and] => Array ( ) [post__in] => Array ( ) [post__not_in] => Array ( ) [post_name__in] => Array ( ) [tag__in] => Array ( ) [tag__not_in] => Array ( ) [tag__and] => Array ( ) [tag_slug__in] => Array ( ) [tag_slug__and] => Array ( ) [post_parent__in] => Array ( ) [post_parent__not_in] => Array ( ) [author__in] => Array ( ) [author__not_in] => Array ( ) [ignore_sticky_posts] => [suppress_filters] => [cache_results] => 1 [update_post_term_cache] => 1 [lazy_load_term_meta] => 1 [update_post_meta_cache] => 1 [nopaging] => 1 [comments_per_page] => 50 [no_found_rows] => ) [tax_query] => WP_Tax_Query Object ( [queries] => Array ( [0] => Array ( [taxonomy] => post_tag [terms] => Array ( [0] => vwv ) [field] => slug [operator] => IN [include_children] => 1 ) ) [relation] => AND [table_aliases:protected] => Array ( [0] => ehieterm_relationships ) [queried_terms] => Array ( [post_tag] => Array ( [terms] => Array ( [0] => vwv ) [field] => slug ) ) [primary_table] => ehieposts [primary_id_column] => ID ) [meta_query] => WP_Meta_Query Object ( [queries] => Array ( ) [relation] => [meta_table] => [meta_id_column] => [primary_table] => [primary_id_column] => [table_aliases:protected] => Array ( ) [clauses:protected] => Array ( ) [has_or_relation:protected] => ) [date_query] => [request] => SELECT ehieposts.* FROM ehieposts LEFT JOIN ehieterm_relationships ON (ehieposts.ID = ehieterm_relationships.object_id) WHERE 1=1 AND ( ehieterm_relationships.term_taxonomy_id IN (2726) ) AND ehieposts.post_type = 'post' AND ((ehieposts.post_status = 'publish')) GROUP BY ehieposts.ID ORDER BY ehieposts.menu_order, ehieposts.post_date DESC [posts] => Array ( [0] => WP_Post Object ( [ID] => 18385 [post_author] => 43 [post_date] => 2019-06-10 00:00:13 [post_date_gmt] => 2019-06-09 23:00:13 [post_content] => The Department for Education (DfE) and Department for International Trade (DIT) have launched a new International Education Strategy (IES) outlining plans to increase student numbers and income generated from international education. Building on the broader Export Strategy published in August 2018, the IES aims to consolidate the strengths in the UK’s education offering whilst addressing the challenges believed to prevent it from reaching its full potential, including, of course, Brexit. Across 23 action points, the IES sets out an ambitious vision impacting on the full spectrum of education sub-sectors from early years through to higher education and aiming to increase the annual value of education exports to £35bn by 2030 (in 2016, it was £20bn). At the same time, it is expected that new National Minimum Standards (NMS) for boarding will be issued in 2019, creating a regulatory requirement for schools to have adequate education guardianship arrangements in place and making them subject to regular inspection. The IES places international education firmly back in the spotlight and suggests there is likely to be renewed interest and increased scrutiny on the arrangements made for international students in the UK. We look at the impact this is likely to have on key stakeholders and, in particular, on the interplay between independent schools registered as Tier 4 sponsors and guardianship organisations. What will this mean for schools? Our schools, which are singled out in the IES for providing international benchmarks for safeguarding and choice, constitute an important aspect of the UK’s international education profile. ISC research reported that in 2017 international schools educated around 4.5 million students around the world, a figure projected to double within the next decade, with the popularity of UK curricula delivered in English remaining strong. In 2018, UK independent schools opened more overseas branches than during the previous 20 years and demand for UK schools abroad continues to grow. The IES seeks to support the ambition and growth of the sector through a variety of measures, including the DIT encouraging independent schools to access international opportunities through the use and provision of exports data, connecting providers with investors and working with key sector bodies to produce information guides for schools interested in developing an international presence. Perhaps even more significantly, IES Action 13 states that the DfE and DIT will coordinate efforts across government and key sector bodies to encourage independent schools to have a better understanding of guardianship arrangements and the role of accreditation bodies. Best learning will be gathered from schools who already do this well. Current thinking is that this will result in new NMS in 2019, which will place greater obligations on schools to be proactive in ensuring that guardianship arrangements are acceptable. For those who have been lobbying for the regulation of educational guardianship, these developments represent the culmination of years of work and one of the most welcome changes in the sector for some time. It was concern about the lack of any formal regulation of educational guardianship and the consequent risks this creates for international students at school in the UK that led, back in 1994, a small group of guardianship organisations and independent schools to create the first accreditation body for guardianship – the Association for the Education and Guardianship of International Students (AEGIS). A registered charity, AEGIS now counts 44 guardianship organisations and 72 independent schools as members. Affiliated with the Boarding Schools’ Association since 2018, AEGIS continues to operate its own accreditation framework and accreditation process and to promote best practice in the sector through conferences and training courses. Despite this, the number of international students who received educational guardianship services from an AEGIS-accredited provider remains low. In 2018, there were just over 28,500 non-British students with parents residing overseas. Of those students, only around 5,000 (17.5%) of them had an AEGIS-accredited educational guardian. It is these statistics that help explain why the IES and new NMS are welcome news to anyone concerned by the potential vulnerability of international students and the legal and regulatory risks being taken by so many schools. New NMS for boarding Whilst it is difficult to know exactly what the new NMS will look like, it is easy to identify issues that they will hopefully address. One is the current lack of any requirement for international students to be provided with independent educational guardianship. This is already a condition of AEGIS accreditation and regarded as best practice in order to ensure that students have an educational guardian able to act as their unconflicted advocate, but it is not widespread. As a result, it is still common for schools to allow, or even encourage, members of their own staff to act as educational guardians (and also homestay provider) for students, blurring the important distinction between ‘home’ and ‘school’ and potentially making it impossible for them to feel supported or even able to complain. Another is clarity on the number of children who are permitted to reside in a homestay at any given time. If experiencing authentic family life within the UK is among the key purposes of a successful homestay arrangement, it makes sense that the number of international students within any one setting be limited. Historically, that limit has been set informally at three, probably because the Children Act 1989 imposes a cap on how many children may be privately fostered in one household (known as the ‘usual fostering limit’) at that number such that hosting more may require registration as a children’s home. Despite this, there is a reported tendency for unaccredited educational guardians to place as many students as possible in each homestay and for some schools to be disinterested in, or even entirely unaware of, whether or not this is the case.UK international schools currently educate around 4.5 million students around the world, a figure projected to double within the next decadeFrom a general welfare perspective this sort of practice is troubling, but it may also be a compliance breach where the school in question is a Tier 4 sponsor and therefore subject to specific Home Office obligations. It is a Tier 4 requirement that any student living in a homestay as part of a private fostering arrangement (i.e. one for 28 consecutive days or more) is not residing in accommodation ‘being operated as a commercial enterprise like a hotel or youth hostel’. Even if it is accepted as unlikely that any sponsored student would do that in practice, it should not be forgotten that sponsoring schools’ welfare responsibilities continue throughout the time students remain in the UK, whether or not it is term-time and the students are actually in their care. With this in mind, now may be the opportune moment for guardianship organisations and schools alike to consider reviewing their practices. Guardianship organisations might investigate accreditation with AEGIS and schools may wish to do the same and/or consider validation by QegUK. Founded in 2016, QegUK differs from, and arguably complements, AEGIS by focusing on improving the practices of education providers (school, colleges, universities). It offers a kite mark to member organisations covering the regulatory aspects of good international student provision but also covers pastoral issues such as how well students are enabled to integrate into their learning community. At a time when Brexit is creating exceptional uncertainty, it is critical that the UK education system and its international offering is as prepared as it can be for life beyond EU membership. The IES provides clear reasons for optimism without forgetting to acknowledge the need to improve the way that international students are supported during their studies here. Hopefully, our regulatory system will now address deficiencies regarding educational guardianship long recognised by self-created accreditation and validation organisations. Ideally it will do so without undermining what makes the UK such an attractive place to live and learn.
Kris Robbetts is a partner at leading education firm VWV. Kris can be contacted by calling 0117 314 5427 or emailing krobbetts@vwv.co.uk [post_title] => International Education Strategy – the impact on independent schools [post_excerpt] => [post_status] => publish [comment_status] => open [ping_status] => closed [post_password] => [post_name] => international-education-strategy-the-impact-on-independent-schools [to_ping] => [pinged] => [post_modified] => 2019-05-31 11:46:02 [post_modified_gmt] => 2019-05-31 10:46:02 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.ie-today.co.uk/dashboard2/?post_type=blog&p=18385 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [1] => WP_Post Object ( [ID] => 17092 [post_author] => 43 [post_date] => 2019-03-29 00:00:00 [post_date_gmt] => 2019-03-29 00:00:00 [post_content] => The police will, on occasion, request that a school release information about current or former pupils, parents, staff and volunteers for the purposes of an investigation. Often, this is perfectly acceptable but if the information being requested is personal data, then the GDPR/Data Protection Act 2018 is engaged and you need to ensure that the disclosure is lawful and you have documented why you consider this to be the case. What you need to do when you get a request from the police: 1. Are you satisfied that the request is genuine? In most cases, this will be obvious because of the context, but do be aware that you may get a request from an individual posing as a police officer. Like with scams, it is important that you don’t take what you are told at face value. If you get an out-of-the-blue phone call, don’t be afraid to challenge the individual to give you more information. Note your reasons why you believe this to be a genuine request. 2. Is it clear what is being requested? How specific is the request? Do you hold the information? Can you identify what is being asked for? Again, don’t be afraid to go back and ask the police to be more specific, and consider explaining why you need this additional information. 3. Does the information requested contain special-category personal data or information concerning criminal convictions/offences? This will not necessarily affect whether or not you can disclose, but will affect your justification for the disclosure, so it is important to identify any special category, or criminal conviction/offence data that is being requested. 4. Do you know why the information is being requested? In order for you to proceed, you do need to understand why the information is being requested. You will not need to know all the details of the police’s investigation/case, and there may be aspects that you cannot know, but you need, in a nutshell, to understand whether the reason for the request is: a. Necessary for the prevention and detection of crime b. Necessary for the apprehension or prosecution of offenders.
You might also like: Considering commercial contracts, with VWV
5. Record what, when and why When you have the information above, you can determine the appropriate legal basis for the decision. You should then keep a record of what you have disclosed, when and the legal basis. Whenever you make any disclosure of personal data, it must be fair, transparent and lawful. When the disclosure is made for the purposes of the prevention and detection of crime or the apprehension or prosecution of offenders, there is an exemption to the requirement that the disclosure be fair and transparent, if doing so would, in itself, prejudice the prevention and detection of crime. However, it still needs to be lawful, and so you still require a lawful basis for this disclosure. In most cases, the lawful basis that will apply here will either be that the disclosure is necessary for the performance of a public task, or necessary for a legitimate interest, where that legitimate interest overrides the interests, rights and freedoms of the individual about whom the disclosure is being made. If special category data, or criminal conviction/offence data, is involved you need a condition for processing. The relevant condition will be one of the conditions under the ‘substantial public interest’ umbrella. For example, the substantial public interest in the prevention or detection of an unlawful act. A school should also give some thought to its transparency obligations under the GDPR. In some cases, it may be appropriate to seek the views of individuals before sharing their personal data with the police. However, in many cases this will be inappropriate, both for practical and legal reasons. For example, a school should not do anything which would ‘tip-off’ possible suspects in a police investigation. In any event, the school should not contact individuals unless the police have confirmed they have no objection to this. Mentioning this use (or type of use) of personal data in your privacy notices will also assist with the transparency obligations. Transparency does not mean that you have to seek the consent of the individual. The police will often provide a form setting out why they need the information. The form should also cover the above points (for example, the legal basis relied on). A school should ask for a copy of this form if it has not been provided. This was previously known as a ‘Section 29 Form’ under the pre-GDPR data protection legislation. Occasionally, the police may request information because there is a genuine emergency, such as likely risk of serious harm to a pupil. Assuming the school is satisfied as to the identity of the police officer making the request, the priority should be to assist the police without delay rather than be overly concerned with which legal basis is being relied on. A note on policies Privacy notices are referenced above. These are also known as privacy policies and fair processing notices, and means the document that you use to meet your obligation to tell people what information you have about them, and what you are doing with it. As mentioned above, it is worth checking this use is included. When relying on the substantial public interest condition for disclosure of special category personal data as set out above, you would usually have to have in place a specific policy which sets out the procedures you have in place to secure compliance with the general data protection principles, and your policies on retention and erasure of the information. This is known as an ‘Appropriate Policy Document’ and applies when you are using a number of the substantial public interest conditions to justify a particular use. You do not need one of these when you are disclosing to the police in reliance on the ‘prevention or detection of an unlawful act’ condition but may need one in other circumstances. If you are satisfied that you have a reasonable request for information from the police for the disclosure of personal data, you will likely be able to release this information. Schools should also give some thought to the context of the police’s request, for example, if a request concerned an allegation of historic abuse at the school then there would likely be significant legal and reputational issues beyond data protection considerations.
Vicki Bowles is a senior associate at leading education law firm VWV. Vicki can be contacted on 0117 314 5672 or at vbowles@vwv.co.uk. VWVʼs online compliance management solution My OnStream provides GDPR data protection and information security e-learning for all your staff so they are aware of what is expected of them. It also tracks and manages staff progress for you and provides real-time reporting. Please consider subscribing to My OnStream; find out more at mos.vwv.co.uk and book a free demo.
[post_title] => Disclosing information to the police: how, when and why [post_excerpt] => [post_status] => publish [comment_status] => open [ping_status] => closed [post_password] => [post_name] => disclosing-information-to-the-police-how-when-and-why [to_ping] => [pinged] => [post_modified] => 2019-07-03 16:05:00 [post_modified_gmt] => 2019-07-03 15:05:00 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.ie-today.co.uk/dashboard2/?post_type=blog&p=17092 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [2] => WP_Post Object ( [ID] => 16881 [post_author] => 37 [post_date] => 2019-03-19 00:00:09 [post_date_gmt] => 2019-03-19 00:00:09 [post_content] =>Schools are likely to be reviewing their approach to combatting financial crime in the light of the renewed focus on anti-money laundering, announced recently as part of the Government’s Serious and Organised Crime Strategy. It is timely therefore to consider the role a school has to play in this issue and how it can best meet its responsibilities and protect itself and its staff.
What is money laundering?
Myth
Money laundering is a term which in popular myth derives from organised crime’s association with ‘laundromats’ (laundrettes) in the early part of the 20th century in the USA. These cash businesses, provided an easy way of introducing cash earned from criminal enterprise into the legitimate economy by mixing it with, and thereby passing it off as, turnover.
In more recent popular culture there is the similarly literal Breaking Bad portrayal of money laundering, where criminal funds were ‘cleaned’ through a car wash business in the same way. These portrayals capture the imagination and are accurate to a point, but they also simplify a complex issue which in so doing may belie its scale and complexity.
The National Crime Agency estimates that the impact of money laundering in the UK is likely to be in the hundreds of billions of pounds, which also enables a variety of other serious crimes from fraud and corruption, to terrorism and drug and arms trafficking. It is no exaggeration therefore to suggest that it is a significant and pervasive problem.
Fact
A far cry from the myths of popular culture, the UK definition of money laundering set out in the Proceeds of Crime Act 2002 (POCA) is actually incredibly broad, spanning everything from facilitating (directly or indirectly) the movement of criminal property by whatever means, to simply handling it. The net is cast wider still by defining criminal property as property constituting “a person’s benefit from criminal conduct… (in whole or in part and whether directly or indirectly)”.
Consequently, receiving money from a person who has committed a tax evasion offence, irrespective of their wealth from legitimate sources, could well fall within the POCA definition of money laundering.
How does this concern schools?
The POCA definition of money laundering is at the centre of our anti-money laundering regime which broadly establishes two levels of regulation for organisations. There are high-risk businesses who are in the regulated sector, such as financial services companies, accountants, lawyers and estate agents, and those outside of the regulated sector, which includes schools, however they are constituted.
Regulated businesses are subject to a prescriptive regime which mandates how relevant organisations are required to address money laundering. Failure to adhere to this regime in many instances is a criminal offence. Schools, as with other organisations outside of the regulated sector, have greater freedom over how they manage this issue, which will depend on how high they perceive the risk to be in their particular organisation. This does not, however, exempt them from having to deal with the problem because directors, governors and trustees, all have legal duties to their organisation and stakeholders which VWV believes calls for a risk assessment of operations and the implementation of suitable risk-based procedures to help tackle financial crime.
It may sound esoteric but good governance, whilst not a criminal matter, is underpinned by legal and regulatory obligations which have to be met and the reputational damage to any organisation which is found to have unwittingly assisted criminal enterprise, is likely to be significant.
Schools, as with other organisations outside of the regulated sector, have greater freedom over how they manage this issue, which will depend on how high they perceive the risk to be in their particular organisationReputational risk
Unlike many organisations outside of the regulated sector, some schools may be particularly at risk of being targeted by criminals. Recently, and not for the first time, it was suggested by security minister Ben Wallace MP that a private education along with prestige cars and football clubs are likely to be attractive purchases for criminals. This is stating the obvious but the important message here is that schools are thought to have an important part to play in addressing this issue and are likely to be under greater scrutiny concerning their dealings with fee payers and donors in the future.
Risk of criminal sanction
Aside from issues of good governance and reputation protection, it is also worth noting that schools and their staff are actually able themselves to commit criminal offences related to money laundering, bribery and terrorism, including the handling of criminal property and the facilitation of money laundering and tax evasion. These are variously individual and corporate offences, and some are liable upon conviction to significant fines and terms of imprisonment.
Perhaps the most likely offences to be committed by school staff are those under sections 328 and 329 Proceeds of Crime Act 2002 (POCA), which, broadly, prohibit the handling of criminal property (329), and the facilitation of money laundering (328). A section 328 or 329 offence could, for example, be committed by accepting a payment for fees or a donation (if you are a charity) at a time when you suspect that the money may be the proceeds of criminal activity.
Whilst the commission of these offences entails criminal intent, ignorance of the law is no defence, and intent can be established simply by demonstrating that the individual in question suspected that the money was not from legitimate sources and proceeded with the transaction anyway. It is worth bearing in mind that ‘suspicion’ does not require there to be any specific evidence, just a more than fanciful possibility that something is true.
There are specific defences available to schools in respect of these offences. For example, if you have received money which turns out to be criminal proceeds as payment for school fees, there is likely to be a specific defence available under section 329 POCA to a handling offence. However, if you received the money at a time when there were grounds to suspect it was criminal property, it is likely that a criminal facilitation offence will have been committed instead.
A school can and should make an authorised disclosure to a relevant authority (which includes a Suspicious Activity Report to the NCA) and if it does so and waits for clearance to proceed before accepting the money, it will have a full defence to any section 328 POCA offence. However, these are limited and narrow protections which rely on the awareness of your staff to be of any value. It is also noteworthy that National Crime Agency statistics suggest that fewer than 10 of the 462,000 Suspicious Activity Reports that it received last year were from schools.
VWV suggests that schools should ask themselves if they are confident that their frontline staff would act upon a suspicion. If the answer is no, VWV says that you may be doing your organisation and staff a disservice if you do not provide a clear policy and training on these issues.
What should we do?
VWV believes that effective financial risk management calls for the identification of the key risks for your particular school, then the implementation of clear and appropriate risk-based policies and procedures, and staff training on their application and implementation.
Schools are advised to operate a credit control policy to ensure consistent practice in respect of issues such as taking cash payments and payments from third parties as a minimum. This can be supplemented by a Combatting Financial Crime Policy which provides more detail about the school’s approach to identifying and managing these risks which is likely to cover appropriate customer/donor due diligence and clear guidelines on internal and external reporting. Schools should also review their contracts with parents and suppliers to ensure that they are compatible with their particular approach to managing financial risk.
VWV believes that these simple measures will not only protect your staff and organisation, they will also facilitate the provision of timely and sometimes crucial intelligence to our enforcement agencies to assist with the fight against organised crime.
James Garside is a senior associate at leading education law firm VWV. James can be contacted on 0117 314 5639 or at jgarside@vwv.co.uk.
VWV's previous legal column: GDPR–what have we learnt?
[post_title] => Financial risk management [post_excerpt] => [post_status] => publish [comment_status] => open [ping_status] => closed [post_password] => [post_name] => financial-risk-management [to_ping] => [pinged] => [post_modified] => 2019-03-18 17:03:42 [post_modified_gmt] => 2019-03-18 17:03:42 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.ie-today.co.uk/dashboard2/?post_type=blog&p=16881 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [3] => WP_Post Object ( [ID] => 16243 [post_author] => 29 [post_date] => 2019-01-26 00:00:46 [post_date_gmt] => 2019-01-26 00:00:46 [post_content] => At VWV, we look at the key data protection issues we have been advising schools on since the new data protection regime came into force in May. Photographs We are often asked whether consent should be sought before taking and using photographs. The answer will often turn on how privacy-intrusive the photograph (or its use) is. For example, a photograph featured on the front cover of a school’s prospectus will likely require consent but not usually if the photo was being used on an internal display at the school. NB – if consent is not sought a school should still be transparent about its practices so that individuals have an opportunity to object. Privacy notices are essential We are finding that a lot of schools have not yet put in place compliant privacy notices. The purpose of the privacy notice is to set out how the school uses personal information. Not only is the provision of privacy notice information a legal requirement, but schools are also finding they are useful in relation to disputes. For example, a parent with an ongoing dispute may seek to argue that the school has breached its data protection obligations through not being transparent regarding how the parent’s data is used, as an additional strand to the complaint. If the school can show that what the parent has complained about is covered in the privacy notice, then this will often go a long way to rebutting the alleged non-compliance. Data breaches – getting the essentials right A number of schools have fallen victim to cyber attacks. These range from phishing emails, through to remote attacks made against the school’s network and IT infrastructure. We have found that attacks are often successful through schools failing to provide essential training to staff or failing to take basic steps to secure the school’s network. Schools should therefore ensure that they have done enough to protect their systems from attack. The GDPR contains explicit obligations around information security, for example, in relation to documentation, encryption, back-ups, and ongoing testing and assessment – schools should have regard to these in particular.Not only is the provision of privacy notice information a legal requirement, but schools are also finding they are useful in relation to disputesSubject access requests aren’t getting any easier Subject access requests (SARs) remain by far the most common type of request made against a school, despite the abundance of new rights granted under GDPR. Of particular note is that the exemption which allowed a school to withhold third-party information (i.e. where third-party data is mixed with the requester’s) under an SAR – this no longer applies if the third party is ‘a teacher or other employee at the school’. This is a significant change which makes it more difficult to lawfully withhold staff information, for example, in circumstances where a school wanted to withhold the identity of a whistleblower. However, this is not to say that third-party staff data must necessarily be disclosed in all cases, in some situations there may be alternative exemptions which would be applicable. Alumni relations A school will often use the same alumni database as its alumni society. In these circumstances, it is not always clear who ‘owns’ the data – either the school or the society (or to use data protection terminology, who the data controller is). That the school may physically control the database is not determinative. A risk is that the society argues that it, and not the school, is the controller, and if the society is right then the school would have no right to use the data for its own purposes. A data-sharing agreement between the school and the society can help to regularise the relationship. An agreement should, in particular, make it clear that the school is a controller of the data (if indeed this is the case) to prevent any dispute further down the line. Often these agreements provide that both the school and the society are controllers. Case study How would you respond if you received this letter from your school’s alumni society? Dear Director of Development, As you know I am the Chair of Blueacre School Alumni Society (the BSAS). It has come to my attention that the school has been using the BSAS alumni database to send out school marketing communications. Not only is this practice a breach of data protection law (you need consent for this) but it is also in breach of our longstanding arrangement that the school is only entitled to use the BSAS database to send out communications on behalf of BSAS and not from the school’s own purposes. It is clear from my review of the correspondence that the school has been sending out letters and emails about school events and school fundraising since at least 2008. I expect your written confirmation that these practices will stop. I have today written to the ICO as I expect they will have something to say about this as well. Yours sincerely, BSAS Chair on behalf of the BSAS Committee How should the school respond? Points to consider: ● There may well be a wider context which has caused a deterioration in the relationship and this communication could be the latest in a long line from the BSAS on a variety of topics. As such, addressing any wider issues may also assist with regards to the BSAS’ concerns regarding data protection. ● At the core of BSAS’ position is that it, rather than the school, ‘owns’ the alumni database and that it is the controller. Whether this is indeed the case will depend on a number of factors, for example, the history of the database, what alumni have been told and the detail of the ‘longstanding arrangement’ the BSAS refer to above. It may be helpful to look through the history of the school’s and the BSAS’ interaction with alumni. For example, if previous communications to alumni have always made it clear that both the school and the BSAS will use alumni personal data for their own respective purposes, then this may assist the school rebut the arguments raised by the BSAS. ● The BSAS have also claimed that the school is in breach of the GDPR because the school did not obtain consent before contacting alumni for school-related purposes. One of the more popular ‘GDPR myths’ is that consent is required for all alumni communications. This is patently not the case although development-related emails sent to alumni will often require consent. ● As noted above, a data-sharing agreement would help address some of the data protection concerns and would also help prevent the BSAS from seeking to raise this issue again in future. As a further (longer-term) step, the school could (with the society’s agreement) seek to bring the society ‘in-house’. This could, for example, involve transferring the society’s assets to the school and making its activities the responsibility of a committee of the governing body of the school. This is something which a number of schools are considering and it does have a number of significant legal and practical advantages. This may also be in the interests of the society members, particularly if the society is constituted as an unincorporated members association as members of unincorporated associations can be personally liable. VWV’s online compliance-management solution My OnStream provides GDPR data protection and GDPR information security e-learning for all your staff so they are aware of what is expected of them. It also tracks and manages staff progress for you and provides real-time reporting. Please consider subscribing to My OnStream. Find out more at mos.vwv.co.uk and book a free online demo. Andrew Gallie and Claire Hall are in the data protection team at leading education law firm VWV. Andrew can be contacted on 0117 314 5623 or at agallie@vwv.co.uk. Claire can be contacted on 0117 314 5279 or at chall@vwv.co.uk. [post_title] => GDPR seven months on: what have we learnt? [post_excerpt] => [post_status] => publish [comment_status] => open [ping_status] => closed [post_password] => [post_name] => gdpr-seven-months-on-what-have-we-learnt [to_ping] => [pinged] => [post_modified] => 2019-01-23 17:24:38 [post_modified_gmt] => 2019-01-23 17:24:38 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.ie-today.co.uk/dashboard2/?post_type=blog&p=16243 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [4] => WP_Post Object ( [ID] => 15550 [post_author] => 1 [post_date] => 2018-12-22 09:00:39 [post_date_gmt] => 2018-12-22 09:00:39 [post_content] => Schools will have heard the news regarding the proposed changes to the Teachers’ Pension Scheme (TPS). With effect from September 2019, employer pension contributions are set to rise from 16.4% to 23.6%. Understandably, this has caused widespread concern throughout the sector. Whilst an increase was expected, the extent of it was not. It was thought employer contributions would rise to 19.1%, and financial forecasts and budgets would undoubtedly have been prepared with that in mind, not the staggering increase now suggested. With no corresponding rise in employee contributions, the burden of the ever-increasing cost of a final salary pension scheme remains with schools. In this article we explore some of the strategic considerations and possible options, at this early stage. In the first instance, schools should take steps to understand the likely consequential increase in costs and how these might be borne. Such steps must include governor involvement at all levels, not limited to finance and resources committee alone, an awareness of the TPS announcement, current collective action by the associations and the likely financial impact of the change. With the ongoing challenge of ensuring school fees are affordable for parents, an increase in fees to cover the costs may not in itself be an option. A significant number of schools will already be managing costs closely as a consequence of the ongoing financial climate; with salary costs often accounting for 80% of a school’s budget, this will inevitably continue. Schools should continue to review their staffing structures and timetable to ensure ongoing operational efficiencies. Many schools have reviewed pay scales to manage financial sustainability and to direct pay towards the most effective contributors, improving incentives, performance and reward.Naseem Nabi What can we do? At VWV, we have supported, and continue to support, schools with strategic initiatives to generate additional income streams and/or with mergers or collaborations to benefit from economies of scale. There will now be a greater imperative on governors to consider such projects and/or accelerate their completion. Whilst the TPS provides a great benefit for teaching staff and is highly valued as a recruitment and retention tool, many schools may also want to assess the benefit against the increased cost and consider whether there are other options. Schools may be considering whether it is possible to close TPS to new members of staff, instead offering access to an alternative scheme. Under current TPS rules however, this is not an option. A school that is accepted to offer the TPS must automatically enrol all teachers at the school. In addition, it is not possible to ring-fence different categories of staff to whom TPS may or may not be offered; if the school participates in the TPS, all teachers of that school have an entitlement to membership. Closure of the TPS may be the other option for consideration. Although this may be unpalatable to some (indeed it is currently a condition of membership of some heads’ associations that heads are members of TPS), it may be considered as one of the options. Any such decision would involve consultation with staff and, depending on the contract of employment, is likely to constitute a contractual change to terms and conditions of employment. Associations requiring heads to be members of TPS would also require consideration.
It was thought employer contributions would rise to 19.1%, and financial forecasts and budgets would undoubtedly have been prepared with that in mind, not the staggering increase now suggestedOccupational pension schemes are sometimes ‘left behind’ on a transaction which involves a transfer of staff to a different employer. Whilst legislation requires transferring employees with such entitlements to be provided with a minimum level of pension provision by the new employer post-transfer, the contributions rates are considerably less. The impact of such decisions on employee relations should, of course, not be taken lightly, that said, however, this is a fairly well-trodden path for commercial school groups when acquiring independent schools. We have also witnessed this approach ripple across the economy as many final salary schemes are closed by large employers, seeking to insulate themselves from the long-term effect of ever-increasing contribution levels. Schools may want to explore other options, and if consideration is to be given to moving away from the TPS, what alternative pension schemes and other benefits are available that may present a viable alternative. Currently the ISBA is considering the possibility of establishing a new pension scheme for the sector, be this from scratch or in conjunction with an existing provider – we will maintain a watching brief. If schools need to make changes that affect staff as a result, whether to pay scales, staffing structures or a move away from the TPS, it will be vital to have an effective means to consult with staff. Consideration should be given to establishing an appropriate consultation body, with the appropriate remit, so that any proposed change is considered and implemented in accordance with the law, in accordance with association rules, and with the understanding of staff. Naseem Nabi is a partner at leading education law firm VWV. Naseem can be contacted on 0117 314 5630 or at nnabi@vwv.co.uk. [post_title] => Teachers' pensions - the challenges ahead [post_excerpt] => [post_status] => publish [comment_status] => open [ping_status] => closed [post_password] => [post_name] => teachers-pensions-the-challenge-ahead [to_ping] => [pinged] => [post_modified] => 2018-12-21 12:04:08 [post_modified_gmt] => 2018-12-21 12:04:08 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.ie-today.co.uk/dashboard2/dashboard2/?post_type=blog&p=15550 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [5] => WP_Post Object ( [ID] => 154 [post_author] => 63 [post_date] => 2018-11-26 00:00:00 [post_date_gmt] => 2018-11-25 23:00:00 [post_content] =>Schools are seeing an increasing number of concerns raised with them by whistleblowers.
It is important for schools to provide effective protection for whistleblowers for a number of reasons. It helps ensure that issues are raised internally to control risk, avoid unnecessary litigation, limit reputational damage and protect staff morale.
The latest version of Keeping children safe in education (KCSIE) makes it clear that all staff should be able to raise concerns about poor or unsafe practice and potential failures in the safeguarding regime through the whistleblowing procedures.
In this article we address some common questions around this area of the law.
Who has whistleblowing protection?
Both employees and workers are protected from being dismissed or subjected to a detriment because they have made a protected disclosure. In this context, workers also include agency workers, freelance workers, seconded workers, homeworkers and trainees. It does not extend to individuals who don’t work for the school, such as pupils, parents or other interested third parties. It also doesn’t include governors in their volunteer capacity. Schools may be advised to address concerns raised by these categories of individuals if they do not fall within the scope of the protection for whistleblowers outlined in this article.
What protection does the law offer to whistleblowers?
The dismissal of an individual will be automatically unfair if the reason, or principal reason, is that they have made a protected disclosure. This includes selecting an employee for redundancy on the grounds that they have made a protected disclosure. In this context, there is no qualifying minimum period of service and no limit on the amount of compensation that can be awarded by a tribunal.
It is also unlawful for an employer to subject an individual to a detriment on the grounds that they have made a protected disclosure. A detriment can include things such as disciplinary action, loss of pay and damage to career prospects.
An employer is vicariously liable for the acts of its workers and employees in subjecting a whistleblower to a detriment. However, an employer will have a defence if it can show that it took all reasonable steps to prevent the detrimental treatment.
Alice Reeve
When does the legal protection for whistleblowers apply?
Whether a whistleblower qualifies for protection depends on a range of factors;
i) Is there a disclosure of information?
In order for a disclosure to be a ‘qualifying’ disclosure, the worker must make a disclosure of information. This must be something more than merely making an allegation, gathering evidence or threatening to make a disclosure. The worker must convey facts, although this can include conveying facts which are already known.
ii) Is the subject matter of the disclosure in scope?
There must be a disclosure of information that, in the reasonable belief of the worker, tends to show that one of the following has occurred, is occurring, or is likely to occur (referred to as a ‘relevant failure’):
- A criminal offence
- Breach of any legal obligation
- A miscarriage of justice
- Danger to the health and safety of any individual
- Damage to the environment
- The deliberate concealing of any information about any of the above
iii) Did the worker have a reasonable belief?
A worker does not have to show that the relevant failure actually occurred, is occurring or is likely to occur, only that they held a reasonable belief in it.
With effect from June 2013 there is no longer a requirement that the disclosure is made in good faith. This means that an employee will be protected even if they have a vested interest in making the disclosure or if it is part of a broader dispute they have with the school.
iv) Was disclosure in the public interest?
As of 25 June 2013, the worker must also reasonably believe that the disclosure is “made in the public interest”. This was to ensure that the whistleblowing framework was not used for individual grievances.
Developing case law has unfortunately established that this is not as narrow as may have been anticipated, with many concerns raised by workers in schools likely to fall within the remit even if they are primarily about their own working conditions or treatment.
Nevertheless, if an individual raises a concern about their personal treatment, the grievance procedure should be utilised rather than the whistleblowing procedure.
v) Is the disclosure protected?
After establishing that there has been a qualifying disclosure, it is necessary to consider whether the disclosure is protected (and therefore that the whistleblower has the protection of the law). This depends on to whom the disclosure is made.
The legislation encourages disclosure to the employer in the first instance, however, disclosures to external third parties will also be protected in some circumstances. There is an approved list of prescribed persons to whom workers can make disclosures, although the conditions for making such disclosures are more stringent than the conditions for making a protected disclosure to the employer. The third party also needs to be an organisation which does have remit for the alleged fault. Most commonly for schools this will be the Charity Commission, ISI or Ofsted, LADO, Children’s Services, the Information Commissioner or the Health and Safety Executive.
Employers should not rely on confidentiality clauses in contracts of employment to prevent workers from making external disclosures, as they are unenforceable if the disclosure is protected and, furthermore, taking action against a whistleblower for breach of confidence may amount to unlawful detriment.
"The latest version of KCSIE makes it clear that all staff should be able to raise concerns about poor or unsafe practice and potential failures in the safeguarding regime through the whistleblowing procedures."
What can schools do to reduce risk from whistleblowing complaints?
When a complaint is received it is helpful to identify if this falls within the scope of the whistleblowing policy or would be better addressed through the parental complaints process or the employee grievance procedures.
It is important that even if a complaint is raised anonymously it should be investigated to the extent that you are able to do so, even though this may be limited.
Whistleblowing complaints should be investigated promptly and the whistleblower should be kept informed of progress where possible. This is important because a whistleblower may become suspicious and make an external disclosure if it takes the employer’s silence as apparent inaction.
Employers should ensure they have a whistleblowing policy and that all staff are aware of this. A policy should set out procedures by which reports can be made confidentially and allow workers to bypass levels of management at which the problem may exist. Employers could also consider introducing a confidential whistleblowing hotline.
Schools should ensure that staff and managers are trained on the whistleblowing policy and make it clear that victimisation of whistleblowers, even where the whistleblower is mistaken, will lead to disciplinary action.
Given the nature of concerns raised under the whistleblowing procedures, it is important that governors are aware of issues and how they are resolved. Charitable schools will need to consider whether they trigger their obligation to report a serious incident to the Charity Commission.
To be kept up to date with regulatory compliance, please ask for a demo of My OnStream. My OnStream is a cloud-based compliance management solution tailored to schools, providing a range of compliance services supported by VWV’s sector-leading lawyers. If you would like to find out more visit www.vwv.co.uk/mos/schools. Alice Reeve is a Partner at leading education law firm VWV. She can be contacted on 0117 314 5383 or at areeve@vwv.co.uk.
[post_title] => How to recognise and address whistleblowing complaints [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => how-to-recognise-and-address-whistleblowing-complaints [to_ping] => [pinged] => [post_modified] => 2018-10-29 15:32:41 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [6] => WP_Post Object ( [ID] => 231 [post_author] => 1 [post_date] => 2018-10-17 00:00:00 [post_date_gmt] => 2018-10-16 22:00:00 [post_content] => On 28 June this year, the DfE produced new non-statutory guidance for mixed schools entitled ‘Gender separation in mixed schools’ (the Guidance). Its publication follows the Court of Appeal’s judgment in HM Chief Inspector of Education, Children’s Services and Skills v the Interim Executive Board of Al-Hijrah School [2017] EWCA Civ 1426, both of which seek to clarify schools’ equality duties in relation to the gender segregation of pupils. All independent schools and academies are required to fulfil their duties and obligations under the Equality Act 2010 (the Act); and ensure compliance with the Education (Independent School Standards) Regulations 2014 (ISSR), in particular: - Part 1 – paragraph 3(j) – ensuring that the teaching at the school does not discriminate against pupils - Part 2 – paragraphs 5(a) and (b) – actively promoting fundamental British values - Part 3 – paragraph 7 – safeguarding and promoting the welfare of pupils - Part 8 – paragraph 34 – quality of leadership and management The Al-Hijrah decision The Al-Hijrah School (the School) is a voluntary aided co-educational Islamic faith school in Birmingham, providing education for boys and girls between 4 and 16. Its practices – based on religious grounds – were to apply strict separation of boys and girls from the age of 9 to 16. The practice was public and a defining characteristic of the School. In 2014 the School was placed in special measures by Ofsted, but it wasn’t until 2016 that Ofsted made adverse inspection findings in relation to leadership and management of the School, due to the segregation of pupils."This is a Court of Appeal decision so is binding authority on all lower Courts considering the equality law implications of pupil segregation."How should schools respond? At VWV, we suggest that all co-educational schools undertake a review of their segregation of pupils in particular by gender (which the Act refers to as by ‘sex’) and in relation to any of the other characteristics protected by the Act (disability, race, religion or belief, age, sexual orientation, gender reassignment, pregnancy and maternity, marriage and civil partnership). Consideration should be given to the segregation which is taking place within the school, whether or not this is permitted (i.e. whether there is a lawful exception under the Act allowing it) and otherwise whether or not the segregation exposes pupils to a detriment. Schools should find appropriate ways to take account of views from pupils about possible detriment (such as pupil surveys) so that the ‘voice of the child’ forms an essential part of the evidence base for the assessment. In so far as sex discrimination is concerned, relevant lawful exceptions apply to: - positive action and single-sex activities (for example single-sex classes to teach sex education and elements of PSHE) - single-sex sport (due to physical strength, stamina or physique of the average girl or boy) separation of such limited duration that is considered negligible in its effect (for example, some segregated PSHE lessons or rehearsal of boys and girls choirs to focus on different voice ranges) - separate toilet and washing facilities - separate boarding accommodation as long as the same standard of accommodation is provided for both boys and girls We have produced a gender separation assessment table to assist schools with this task which is available at vwv.co.uk/onstream.VWV’s Alice Reeve discusses this key topic.
In good news for schools with boarding or other residential staff, the Court of Appeal has now produced a judgement (hearing the appeal of Shannon v Rampersad (t/a Clifton House Residential Home) and Royal Mencap Society v Mrs Tomlinson-Blake) that has reverted to the more straightforward reading of the national minimum legislation and confirmed that in most cases it is only time that is spent awake and responding to issues that counts as working time for national minimum wage purposes.
How to calculate whether the national minimum wage has been paid
The following steps are needed:
1) Establish the ‘pay reference period’. This depends on how regularly staff are paid.
- For staff paid monthly, the pay reference period is a month
- For staff paid weekly, the pay reference period is a week
- If staff are paid daily, the pay reference period will be a day
2) Calculate how much pay was received in the reference period. Include: gross basic salary and allowances but not any premium paid for overtime.
3) Make any adjustment for the accommodation offset. For staff who are provided with free-accommodation this can currently be valued at £7.00 for each day that accommodation is provided in the pay reference period. No other ‘benefits in kind’ count, so you cannot include the value of any utilities, food, etc.
4) Determine how many hours were worked in the reference period. For salaried staff this can be based on an average over the 12 months.
5) Divide the total pay (including any applicable accommodation offset) in the reference period by hours worked. This must result in a figure greater than the national minimum wage. For adults (25 and above) this is currently £7.83 per hour.
Alice Reeve
Which hours count?
A key aspect is assessing whether the national minimum wage has been paid is determining which hours count for the purpose of this calculation. The national minimum wage regulations provide that in addition to hours worked, workers;“are treated as doing work if they are available (and are required to be available) at or near a place of work for the purpose of working”. This is subject to exceptions where; “that worker is at home; and/or hours when a worker is available only includes hours when the worker is awake for the purposes of working, even if a worker is required to sleep at or near a place of work and the employer provides suitable facilities for sleeping”.
The facts
Mr Shannon, an ‘on-call night care assistant’ was provided with a flat at the care home where he worked and was required to be in the flat from 10pm to 7am to meet a regulatory requirement. He was permitted to sleep during these hours. He was there to support a night care worker who was on duty and awake during this period. Mr Shannon had to respond to any calls for assistance from the night care worker on duty at the time, but was very rarely called upon.
In the Mencap case, the claimant was a domiciliary care support worker who worked at the private homes of two vulnerable adults, where she had her own bedroom and access to a shared bathroom. The claimant’s shift rota included both day shifts and sleep-in night shifts. During the night shift, no specific tasks were allocated to her, but she had to remain at the house and intervene where necessary and respond to requests for help and emergencies. The need to intervene was real but infrequent (six occasions over the 16 months before the ET hearing).
The decision
The EAT in the Mencap case found that it was critical to determine whether an individual required to be on site was working or merely available to work.
It concluded that a ‘multi-factorial’ approach must be taken to determine whether (for minimum wage purposes) someone is working simply by being at their employer’s premises or is merely available to work, whilst sleeping on site.
"In most cases it is only time that is spent awake and responding to issues that counts as working time for national minimum wage purposes."
The EAT said that the factors which should be considered, which would lead to a conclusion that an individual was working may include; where a regulatory requirement was being met by the worker’s presence, the extent their activities were restricted by the requirement to be on site, the degree of responsibility and type of activities they may be called upon to perform, and the immediacy of the requirement to respond.
The consequence of this judgment had been that many staff sleeping in boarding houses were at risk of being considered to be working for all the hours they were present on site, and not just time spent responding to calls.
The Court of Appeal has now rejected this position. The Court confirmed that it is still important to consider whether an individual is working or merely available to work. It is only if they fall into the latter category that it is possible to make use of the exemptions. However, the judge found that most staff sleeping on premises will be considered to be available to work, and only hours spent awake and responding to calls will count for the purposes of the national minimum wage. This is irrespective of if they are there to meet regulatory requirements.
Best practice
This decision will be welcomed by boarding schools (or any schools with residential staff) and will have implications for most boarding staff. As a starting point it will still be important to identify those staff who are working when required to be present on site, as distinct from merely available to work.
- Staff who are working either at home or on site (even if work is intermittent with downtime) – all time will count for NMW
- Staff who are available to work at home – no time at home will count for NMW
- Staff who are available to work on site with arrangements to sleep – only time when awake and responding will count for NMW
In order to ensure that you are compliant, schools should arrange for a record to be kept of hours worked overnight and ensure either that staff are paid for these hours, or that their total remuneration is greater than the national minimum wage when these hours are taken into account.
It is also important to note that whilst this is a helpful decision in relation to claims for pay under the national minimum wage, it does not affect the Working Time Regulations, which are based on different definitions. Schools will still have to consider the requirements of the Working Time Regulations when drawing up rotas for house staff.
Alice Reeve is a partner at leading education law firm VWV. Alice can be contacted on 0117 314 5383 or at areeve@vwv.co.uk.
[post_title] => When does sleeping count as work? [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => when-does-sleeping-count-as-work [to_ping] => [pinged] => [post_modified] => 2018-08-17 16:55:33 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [8] => WP_Post Object ( [ID] => 423 [post_author] => 63 [post_date] => 2018-06-24 00:00:00 [post_date_gmt] => 2018-06-23 22:00:00 [post_content] =>The response to the recent consultation and latest draft update to the government guidance, issued by the Department for Education, was published on 17 May 2018. The latest edition of Keeping Children Safe in Education (KCSIE) is due to come into force on 3 September 2018 (schools and colleges should continue to refer to the 2016 version of the guidance until then) and is likely to be amended again before implementation.
In this article, Tabitha Cave of VWV considers the key changes and likely further amends before September, what schools should do to respond to those changes and considers the future of our current regulatory framework for safeguarding.
KCSIE – the latest version
There are a number of changes from the draft which was consulted on earlier this year. The key points to note are:
Part one – safeguarding Information for all staff:
- There is an extension of the materials to be covered on induction
- Staff are required to be particularly alert to the potential need for the early help of some defined classes of individuals
- The DSL and their deputies should have a complete safeguarding picture and are identified as the most appropriate staff members to advise on the school’s response to safeguarding concerns and to lead on early help considerations. If they are not available, staff should speak to the SLT or children’s services without delay and follow up/escalate matters if information is not forthcoming
- Schools should identify other whistleblowing mechanisms available to staff who feel unable to raise concerns with the school directly
- All staff should consider the wider context in which safeguarding incidents or behaviours occur
Part two – management of safeguarding:
The principal changes relate to clarification of responsibility – they make it clear that responsibility sits with governing bodies or proprietors but add more focus on safeguarding being everyone’s responsibility and the individual responsibility on all staff that this principle carries.
- Governing bodies and proprietors should have a senior board level lead to take leadership responsibility
- School groups should ensure that each school has its own child protection (or safeguarding) policy
- Information sharing is justified where safety may be at risk and/or to support pupils’ transition to new schools
- All staff should be clear about procedures for managing allegations of peer-on-peer abuse
- Schools should have clear arrangements to support previously looked-after children and care leavers, as well as looked-after children
- Schools should have policies in place to support appropriate physical contact and the use of reasonable force for all pupils
- School leaders and those who work directly with children should read Annex A which contains new information about specific forms of abuse and safeguarding issues
Further revisions are likely to be made to this section (and other areas of the guidance) to reflect the changes to be made to Working together to safeguard children (WT), GDPR and the Data Protection Act 2018.
Parts three and four – safer recruitment/allegations of abuse made against teachers and other staff):
Minor changes have been made to improve clarity. No new requirements have been introduced.
Part five – child-on-child sexual violence and sexual harassment:
There is a new part five – child-on-child sexual violence and sexual harassment. This is markedly different from the guidance attached to the consultation and focuses on the identification of concerns. It should be read in conjunction with the non-statutory advice on this topic.
Tabitha Cave
KCSIE – what schools should do now
The guidance expressly refers to further anticipated changes to reflect the latest version of Working Together to Safeguard Children (expected imminently) and to the GDPR and Data Protection Act 2018. It is our view that any changes to be made to KCSIE will be consequent on these, will reflect references and terminology, and are unlikely to require significant change to safeguarding procedure within education institutions, especially as we understand that KCSIE is likely to be updated again next year.
We therefore recommend that schools and colleges plan for the implementation of the new guidance on the basis of what is published now, knowing that it will apply from the start of the 2018/19 academic year. Given that most of the changes have been through consultation and been published some four months prior to implementation, it is unlikely that inspectors or the DfE will give a ‘grace period’ for non-compliance (as they used to when guidance was effective as soon as it was published).
We suggest a risk-based approach and with this in mind suggest the following actions now:
1. Review the management of safeguarding and delegation arrangements internally and check that appropriate arrangements are in place to support
a. higher risk pupils as identified; and
b. pupils in homestay accommodation
As part of this, check that adequate resource has been allocated to the DSL/DDSL role
2. Plan training for staff
a. on the changes as part of their September inset. All staff will need to read and understand the changes to part 1 and leaders and staff who work directly with children should also read
Appendix Ab. review induction training for new starters and ensure reference to your behaviour policies is included
3. Ensure that your school or college’s policies and procedures are up to date. Of particular importance in this respect are changes to reflect early help indicators, to introduce the concept of contextual abuse and cover the use of reasonable force to:
a. safeguarding/child protection
b. anti-bullying
c. behaviour and discipline
d. risk assessment for pupil welfare (if you maintain a separate policy for this)
4. Review staff policies and procedures including:
a. staff code of conduct
b. job description of DSL/DDSL
5. Review arrangements for information-sharing about pupils going to new schools or colleges
The future of safeguarding
Safeguarding is a concept which is in the public eye following widespread reports of safeguarding and abuse, in the independent sector and more widely.
Concern about how to prevent such issues from recurring and making our schools and colleges safer places has led to increased regulation and scrutiny and to regular change in the requirements which itself brings additional strain. What is clear is that regulation itself will not prevent abuse or welfare issues being missed and what is required is a fundamental culture change where everyone is encouraged and empowered to report concerns. All education organisations are encouraged to not only consider compliance with externally set standards, but consider what else they can do to impact this.
We are aware of the challenges posed by increasing regulation and the speed of regulatory change. We do not, however, anticipate any fundamental change in approach to the management of safeguarding in the short to medium term and certainly not while it is under the current level of scrutiny, and until the Independent Enquiry into Child Sexual Abuse has concluded and made its own recommendations. We are mindful of societal push back to increased regulation, which has been seen particularly in the health and safety sphere following a trend towards increased regulation, which has led to a more outcome-focused regime, which is emulated by many regulators. We do think that we are likely to see a similar shift in the longer term in the safeguarding arena, but this will require a fundamental change of approach by the Government.
To ensure that all your staff are aware of their responsibilities and have read and understood Part 1 of the new KCSIE guidance, we encourage you sign up for our online KCSIE E-learning through My OnStream. This portal allows you to easily distribute training to all your staff, provides reporting on completion, and alerts to those that haven’t yet completed. See more at mos.vwv.co.uk and request a free online demo.
Tabitha Cave heads the regulatory compliance team at leading education law firm VWV. Should you have any queries about any of the issues raised in this article, please do not hesitate to contact Tabitha on 0117 314 5381 or at tcave@vwv.co.uk
[post_title] => An update to Keeping Children Safe in Education [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => an-update-to-keeping-children-safe-in-education [to_ping] => [pinged] => [post_modified] => 2018-06-21 10:56:34 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [9] => WP_Post Object ( [ID] => 503 [post_author] => 63 [post_date] => 2018-05-23 00:00:00 [post_date_gmt] => 2018-05-22 22:00:00 [post_content] =>At VWV, we represent the Harpur Trust as they seek a common sense interpretation of the approach to calculating holiday pay for term-time only workers under the Working Time Regulations (WTR). The Harpur Trust includes under its operation four independent schools: Bedford School, Bedford Modern School, The Bedford Girls’ School and Pilgrim’s School. Since the introduction of the WTR, it has been common practice to recognise that working part of the year is a part-time working arrangement, calculating holiday pay on a pro rata basis to the proportion of the year worked. To ensure all workers are paid the pro rata equivalent of the 5.6 week statutory holiday entitlement, holiday pay is frequently calculated as being no more than 12.07% of annual earnings, (the amount a full-time worker would receive).
A recent Employment Appeal Tribunal judgment disagreed with pro rating holiday pay to the proportion of the year worked and rejected the 12.07% method of calculation. The judge ruled that holiday pay should be calculated on a 12-week average of pay from weeks actually worked. The Harpur Trust has sought leave to appeal to the Court of Appeal as the judgement has far-reaching implications for practices across many sectors within the economy.
Background
Mrs Brazel (the Claimant) is employed by the Harpur Trust (the Respondent) to work at one of its schools as a visiting music teacher.
The Claimant is employed on a zero hours contract. She is entitled to the equivalent of 5.6 weeks’ paid annual leave per academic year. Part-time employees receive pro rata holiday entitlement and pay per year to receive the ‘same’ percentage as their full-time equivalents.
Full-time employees receive 5.6 weeks holiday leave and pay calculated as 12.07% of annual pay. (The calculation is 5.6 weeks holiday/46.4 working weeks in a full-time 52 weeks per year contract = 12.07%). This calculation is used by ACAS and others as it ensures fairness between full-timers and part-timers.
The claim
The Claimant sought to rely on section 224 of the Employment Rights Act (ERA) which sets out the method to calculate the weekly pay of an employee with no normal working hours. The Claimant’s case was that section 224 ERA entitled her to 5.6 weeks’ holiday pay based on the Claimant’s average weekly pay over the 12 weeks actually worked by her, immediately prior to the relevant holiday being taken. This would have provided more pay than the 12.07% calculation.
The Respondent argued that the entitlement to 5.6 weeks holiday per year should be pro-rated where the employee works fewer weeks than 46.4 weeks a year. If someone worked 26 weeks per year for example, they should receive 2.8 weeks holiday. 12.07% as a method of calculating holiday pay is a recognised way to ensure pro rating works effectively and full- and part-time workers are treated equally.
Simon Bevan
Employment Tribunal decision
The Employment Tribunal (ET) agreed with the Respondent, accepting that the amount of holiday entitlement should be pro rated in light of both her part-time and term-time only working pattern.
The ET rejected the Claimant’s argument that she was entitled to holiday pay in accordance with section 224 ERA. The ET found that this 12-week calculation would have entitled the Claimant, who had only ever worked between 32 to 35 weeks a year, to the same 5.6 weeks holiday pay as someone who worked full-time. This would provide for an actual 17.5% of holiday pay, being more generous than for someone who worked 46.4 weeks per year.
Employment Appeal Tribunal decision
Surprisingly, the EAT allowed the appeal, finding that:
- The purpose of the relevant EU and domestic provisions is to ensure that part-time workers are not treated less favourably than those who work full-time
- There is no equivalent provision so that full-time workers may be treated less favourably than those who work part-time
- Section 224 ERA can be used to calculate the weekly pay of someone who works irregular hours
- There is no entitlement for a school to carry out an exercise in pro-rating holiday entitlement and pay for those who work part of the year (only for those who work part of the week)
The judge accepts that those working part of a week, will receive a pro rata holiday pay entitlement. The judge did not accept that those working part of the year, may have the same pro rating calculation applied to their holiday pay entitlement.
Whilst the 12.07% calculation of holiday pay is widely used, this judgment means that those who work part of the year will receive a higher percentage of holiday pay. The 12.07% calculation may not be used as a cap. At the extreme, if someone worked 12 weeks, they would be entitled to a full 5.6 weeks of holiday pay, calculated as the average weekly pay over the 12 weeks actually worked achieving a significantly higher percentage of holiday leave and pay than a full-time equivalent. (Please be assured that this will not apply to full- and part-time teachers on a salary scale who are paid a percentage of the full-time equivalent salary).
The wording of the contract of employment cannot avoid this liability. 5.6 weeks’ holiday entitlement and pay is a statutory entitlement and cannot be avoided by contract drafting.
The Harpur Trust have sought leave to appeal the judgment.
Comment
Whilst leave to appeal is being considered by the Court of Appeal, it is premature to change current practices. Where staff raise any queries, they should be informed that the position is under review whilst an appeal is being progressed in the courts.
The judgment must, however, be considered in light of the recent European Court of Justice decision in King v Sash Window Workshop case which could mean that any underpayment of holiday pay could be backdated for more than two years, potentially to the start date of employment or 1998, (the introduction of the WTR), whichever is the earlier.
Schools may wish to audit their current leave and pay entitlements for term time only, casual and zero hours staff to consider the potential implications of the judgment in the event it is not overturned.
The EAT judgment as it currently stands does mean that contract wording cannot avoid its implications. It is through appeal that the position will be redressed.
To be kept up to date with regulatory compliance, please ask for a demo of My OnStream. My OnStream is a cloud-based compliance management solution tailored to schools, providing a range of compliance services supported by VWV's sector-leading lawyers. If you would like to find out more visit vwv.co.uk/mos/schools.
Simon Bevan is a partner at leading education law firm VWV. Simon can be contacted on 0117 314 5238 or at sbevan@vwv.co.uk.
[post_title] => Calculating holiday pay for term-time only workers [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => calculating-holiday-pay-for-term-time-only-workers [to_ping] => [pinged] => [post_modified] => 2018-05-17 09:46:22 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [10] => WP_Post Object ( [ID] => 549 [post_author] => 63 [post_date] => 2018-05-19 00:00:00 [post_date_gmt] => 2018-05-18 22:00:00 [post_content] =>
At VWV, we see a very broad spectrum of approaches among schools dealing with their contractual relationships with suppliers and third parties. Those approaches vary between schools, but also within individual schools where different contracts represent different risk profiles.
This article looks at some common pitfalls and suggestions of good practice, in relation to the types of commercial contract that we often work on with independent schools.
Supplier standard terms (non-negotiable)
For certain types of contract, there really is very little scope to agree any changes to the supplier’s standard terms of business. That is usually the case where the product or service being purchased is commoditised. Certain software licencing agreements and minibus leasing contracts are good examples of this sort of arrangement.
However, whilst there might not be scope to amend those standard terms, it is always important that schools understand them and ensure that they are comfortable with the risks. Very often, the less negotiable the terms, the more onerous they tend to be.
Although you may not be able to negotiate, if the terms really don’t work for you then taking your business elsewhere – to a supplier whose terms are more palatable – may be the answer.
Alternatively, having read and understood the risks, you might decide to enter into the contract on those terms – in that case, forewarned is forearmed in terms of your ability to manage your risk under those contracts whilst they are in place.
We come across situations all too often where the lack of scope for negotiation has resulted in schools simply signing up without really paying attention to the terms of the contract. Typically, this results in unexpected payments being due on termination of the contract, being locked into the contract for longer than was anticipated and poor contract management during the contract term.
Key message: be just as rigorous in reviewing and understanding non-negotiable standard terms as you would be with any other contract.
Supplier standard terms (negotiable)
Most suppliers to schools will have their preferred form of contract. However, where the services are relatively bespoke to the school – or where the supplier has an interest in setting a positive tone for the ongoing relationship – there is usually scope to negotiate those terms. Outsourced catering services and school uniform supply agreements, are good examples of this sort of arrangement.
The approach of suppliers with this sort of arrangement varies significantly. Some suppliers – particularly the better-resourced ones with a dedicated school offering – use documentation which is drafted so as to be a reasonable position which a school could accept with relatively limited changes. Others – often smaller providers, or those who don’t really distinguish between their school clients and other clients – rely on documentation which is a long way from what we would consider to be ‘best practice’ for schools.
You may well be told that ‘all of our other customers just sign up to our standard terms’. You should take that statement with a big pinch of salt. In our experience it is often those schools who then find themselves in difficulty with the service provider once the contract is underway. When dealing with this sort of arrangement, you should take advantage of the opportunity to negotiate, before committing your business to that supplier. Ensure that the terms are fair and that they include certain key protections for your school.
By way of example, depending on the nature of the services, you may well need to include robust safeguarding obligations on your provider. We have yet to find a provider – of any service – which includes safeguarding obligations in their standard terms which we think are sufficiently robust for schools.
Similarly, in arrangements where the holding and processing of personal data is taking place, (even if that is not a ‘core’ feature of the service), it will be important to ensure the contract adequately deals with data-protection issues. This is particularly the case post-GDPR (General Data Protection Regulations). GDPR is very prescriptive about the obligations that contracts must include in order that your contract is compliant.
Key message: take the opportunity to make sure that these important contracts work for you.
Ed Rimmell
School template contracts
In some circumstances, where you are regularly entering into contracts of a similar type, it will be sensible for you to develop your own suite of standard documents. Aside from parent contracts (which have their own very specific considerations), facilities hire agreements and contracts with international pupil recruitment agents are good examples of this sort of arrangement.
You should, of course, ensure that these documents robustly protect the school’s position, and adequately deal – where appropriate – with safeguarding issues and relevant charity commission guidance, immigration, lease and licence issues, consumer legislation, etc. You should also ensure that the documents are structured in such a way as to be relatively easy for your staff to use on a day-to-day basis (without needing to get into the detail of the contract terms each time it is used).
However, in our experience it is also sensible to ensure that – whilst properly protecting the school’s position – the document is a reasonably balanced agreement. One benefit of this is that it minimises any negotiation on the terms of the contract. This approach will also help – where you present the contract as being ‘non-negotiable’ – to ensure that the contract is enforceable in the way that you expect it to be and that it doesn’t fall foul of ‘unfair contract terms’ and ‘consumer contract’ rules.
Key message: ensure that your standard documents robustly protect your own interests, but do so in a balanced way – and ensure that they are maintained and kept up to date.
Bespoke arrangements
On occasion, the commercial arrangements that you are putting in place will be relatively unique to both you and your counterparty. In these circumstances, neither party will have a ready document on which to base your arrangement. Shared facilities agreements and partnering agreements are good examples of this sort of arrangement.
Usually, these bespoke arrangements are, by their nature, of some strategic importance to the school. It is particularly important to ensure that careful consideration is given not just to the legal terms but also to the commercial structure of the arrangement.
There is no ‘one-size-fits-all’ approach to these sorts of bespoke arrangements. However, in our experience, the most efficient process for agreeing documentation of this nature is where the key commercial and legal considerations are identified and addressed at the outset. This enables the parties to ensure that potential sticking points are addressed at an early stage, rather than have them become issues late on in any negotiation.
Key message: these will always be the more challenging arrangements to put in place, so give yourself time to do so, making sure that sticking points are identified early.
With low-value or non-bespoke contracts, simply ensuring that you understand the contract to be able to manage your risks will be sufficient. For other contracts, where it is of strategic importance or where there are important commercial or regulatory aspects to address, a more involved approach will be appropriate.
In summary and in all cases, you should always carry out a careful analysis of the type of contract, its value and its risk. Armed with that information, you will be able to make an informed decision as to the appropriate approach to the contract. You will be better equipped – once it is up and running – to ensure that you enjoy a positive and well-managed relationship with your suppliers and other counterparties. A good contract will set expectations and properly allocate risk.
To be kept up to date with regulatory compliance, please ask for a demo of My OnStream. My OnStream is a cloud-based compliance management solution tailored to schools, providing a range of compliance services supported by VWV's sector-leading lawyers. If you would like to find out more visit vwv.co.uk/mos/schools
[post_title] => Considering commercial contracts, with VWV [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => considering-commercial-contracts-with-vwv [to_ping] => [pinged] => [post_modified] => 2018-04-19 17:06:37 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [11] => WP_Post Object ( [ID] => 645 [post_author] => 63 [post_date] => 2018-03-24 00:00:00 [post_date_gmt] => 2018-03-23 23:00:00 [post_content] =>Charitable organisations are able to apply for a licence enabling them to sponsor migrant workers under the Tier 5 (Charity Worker) category. Migrants issued visas in this category can come to the UK for up to 12 months “to undertake voluntary fieldwork which contributes directly to the achievement or advancement of the sponsor’s charitable purposes in the UK”. Many independent schools established as charities already hold a sponsor licence enabling them to sponsor migrants in this category.
Anecdotally, it appears there has recently been an increase in refusals of applications for visas submitted by migrant workers who have been sponsored by schools under Tier 5. There have been no substantive changes in the rules or policy for this category for many years, nor is this category subject to a quota. Therefore, an increase in refusals could be due to existing rules being applied more strictly.
What are the requirements for sponsors?
The Tiers 2 and 5 guidance for sponsors (the Sponsor Guidance) provides as follows:
4.14 To apply for a licence as a sponsor of charity workers, you must be a registered, excepted or exempt UK charity in line with the relevant charity legislation in force in your part of the UK
Independent schools registered as charities are eligible to become sponsors in this category.
The Sponsor Guidance also explains that when a sponsor assigns a Certificate of Sponsorship (CoS) to a migrant worker under this category they make certain guarantees regarding the work the migrant will be doing:
- The migrant will undertake voluntary fieldwork which is related to the objects of the charity for a period of no longer than 12 months
- The migrant will not be paid or receive other remuneration for their work
- The migrant will not be filling a permanent position, including on a temporary basis
- The migrant will comply with the conditions of their permission to stay and will leave the UK when their leave granted under this category expires
"The Tier 5 (Charity Worker) category is a useful one but its remit is perhaps narrower than many appreciate."
Taking these guarantees in turn:
Voluntary fieldwork relates to the objects of the charity
UK Visas and Immigration (UKVI) guidance explains that voluntary fieldwork means activities which would not normally be offered at a wage or salaried rate and which contribute directly to the achievement or advancement of the sponsor’s charitable objects. This does not include work which is ancillary to the sponsor’s charitable objects, such as routine back office administrative roles, retail or other sales roles and fund-raising roles.
Pay/remuneration
Migrants sponsored under this category cannot receive any form of payment or remuneration, including benefits in kind, except the permissible reasonable expenses payable to voluntary workers set out in the National Minimum Wage Act (NMWA), eg expenses incurred in the performance of duties (or reasonably estimated as likely to be or to have been so incurred).
Voluntary workers may receive some or all subsistence or accommodation as is reasonable in the circumstances of the employment but any other payment, remuneration or benefit in kind is prohibited.
Filling a permanent position
A person sponsored under this category cannot be coming to temporarily fill a permanent role. If somebody else would be needed to fill this role after the voluntary worker has left the UK then this requirement will not be satisfied.
Compliance with conditions and leaving the UK
When a sponsor assigns a CoS, UKVI take that as a guarantee from the sponsor that the migrant will comply with the conditions of their permission to stay and that they will leave the UK when their leave expires.
Reported refusals
It appears that recent reasons for refusals under this category primarily include:
- Failure to demonstrate the role is not a permanent position
- Failure to demonstrate how the proposed work will help meet the charity’s objects
These are not new requirements, but it is possible that applications are being subjected to a greater degree of scrutiny than previously. Schools relying on this category need to ensure they are able to demonstrate how all of these requirements are satisfied.
Whilst there is no requirement to submit any additional documents with the application which might demonstrate how these requirements are satisfied, it is recommended that schools use the job description section of the CoS to explain clearly that the role is not temporarily filling a permanent position. Also how it will help meet the school’s charitable objects.
As well as the records sponsors must retain in accordance with Appendix D of the Sponsor Guidance, they should also retain evidence demonstrating the above requirements have been satisfied. This evidence should be retained on the sponsored migrant’s file and made available for inspection by UKVI compliance officers on request.
The types of roles in a charitable independent school which might meet the requirements for sponsorship in this category will depend on their particular charitable objects. Voluntary roles unlikely to meet the requirements include qualified/unqualified teaching staff, work experience positions, fundraising roles and grounds maintenance.
Incorrect assignment of a CoS risks both the migrants’ visa application being refused and compliance action being taken against the sponsor for failing to ensure the requirements of the category have been satisfied. This could be considered as a form of abuse of the sponsorship system.
Tom Brett Young
Alternatives to the Tier 5 Charity Worker category
Where the Tier 5 Charity Worker category might not be appropriate, schools may wish to consider alternative immigration categories in order to employ foreign nationals requiring sponsorship, including:
- Tier 5 (Youth Mobility Scheme) – migrants under the age of 31 from specified countries who can come to the UK for up to two years and take any paid employment (other than as a professional sportsperson or coach)
- Tier 5 (Government-Authorised Exchange) – Home Office-approved schemes allow graduates and undergraduates to intern and undertake work experience in the UK
- Dependants of Points-Based System migrants – a foreign national accompanying their spouse to the UK who has been granted a visa in Tiers 1, 2, 4 (unless the principal migrant is studying part-time) or 5 will usually be granted permission to work
- Tier 2 (General) – schools with a Tier 2 sponsor licence may consider sponsoring workers under this category, although this will require compliance with various requirements such as minimum skill level and minimum salary
Conclusion
The Tier 5 (Charity Worker) category is a useful one but its remit is perhaps narrower than many appreciate. Schools sponsoring voluntary workers under this category need to ensure the role in question meets the requirements stipulated above with proper evidence. Visa applications are not always subject to the same level of scrutiny, so applications not addressing all of these requirements may still be approved, but failure to demonstrate how the requirements set out above have been satisfied do run a risk of refusal. Anecdotally, it appears that greater scrutiny is now being applied. Sponsors considered to be abusing this route may be subject to compliance action, so could receive a compliance visit from UKVI and may have their sponsor licence downgraded, suspended or revoked.
For further info, visit vwv.co.uk/mos/schools. To be kept up to date with regulatory compliance, please ask for a demo of My OnStream. My OnStream is a cloud-based compliance management solution tailored to schools, providing a range of compliance services supported by VWV’s sector-leading lawyers.
Tom Brett Young is a Senior Associate at leading education law firm VWV. He can be contacted on 0121 227 3759 or via tbrettyoung@vwv.co.uk.
[post_title] => How it works: schools, Tier 5 licences and charity workers [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => how-it-works-schools-tier-5-licences-and-charity-workers [to_ping] => [pinged] => [post_modified] => 2018-03-15 13:13:58 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [12] => WP_Post Object ( [ID] => 727 [post_author] => 63 [post_date] => 2018-02-19 00:00:00 [post_date_gmt] => 2018-02-18 23:00:00 [post_content] =>
With technology developing rapidly and the legislation changing this year, compliance with data protection law can seem like a daunting task. The new General Data Protection Regulation (GDPR) comes into force in May, but it’s certainly not too late for schools to take steps to put in place effective policies, procedures and staff training.
The basics
The Data Protection Act 1998 (DPA) controls how personal data (information your school holds which relates to pupils, parents, staff, etc.) is used by schools. Schools will process (e.g. hold, use, transfer) large amounts of personal data, and are therefore under an obligation to protect that information and handle it properly. The DPA sets in place principles and specific rules that schools must follow.
The Information Commissioner’s Office (ICO) is the UK’s independent body set up to uphold data protection rights. The ICO can issue fines for non-compliance of up to £500,000 under the DPA.
The GDPR
On 25 May this year, the DPA will be superseded by the GDPR. The GDPR is produced by the European Commission, and covers all aspects of data protection.
The GDPR will apply because the UK will still be part of the EU in May, but our forthcoming departure makes the situation more complicated. To ensure a smooth transition regarding data protection following Brexit, the Data Protection Bill has been drafted. The Data Protection Bill will support the introduction of the GDPR, as well as generally modernising data protection laws.
What is changing?
The GDPR and the Data Protection Bill build on the current DPA, but introduce stricter rules and additional obligations on schools. What are the key changes?
- Fines
Under the GDPR, the maximum fine will increase to the higher of €20 million and 4% of annual worldwide turnover- Privacy notices
The DPA requires schools to be transparent when handling personal data. This includes providing information about how the data is used, typically in a privacy notice. The GDPR will require significantly more information to be included in privacy notices. For example, individuals must be told about their right to complain to the ICO and must be given information about how long their data is kept for- Information security
The GDPR makes explicit reference to having data protection policies, and requires controllers to consider specific privacy-enhancing techniques such as pseudonymisation and encryption- Privacy by design and data protection impact assessments
The GDPR makes privacy by design an express legal requirement. When introducing any new technology, product or service that involves processing personal data, privacy and data protection compliance should be considered from the start of the project. A formal Data Protection Impact Assessment will be mandatory where data processing is likely to result in a ‘high risk’ to individuals- Record keeping
The GDPR contains extensive requirements around record keeping and being able to show a paper trail of compliance- Reporting obligations
Under the DPA, there is no legal obligation to report data security breaches to the ICO. The GDPR creates a new obligation to report data breaches to the ICO that pose a risk to individuals, and in some cases to notify the individuals affected- Fundraising and consent
The GDPR sets a higher standard for consent. For example, blanket consents are insufficient, as are pre-ticked boxes consents “hidden” in terms and conditions. It must also be as easy to withdraw consent as it was to give it. These changes reflect the idea that consent is not a one-off tick box procedure, but is an ongoing and actively managed choice. This is particularly relevant for consents obtained for fundraising- Children
The GDPR will bring in special protection for children’s personal data. Where online services are offered to children (e.g. social media) and consent is relied on to collect information, consent must come from a parent until the child is aged 13- Subject Access Requests
The right to make a Subject Access Request exists under the DPA, and will be familiar to many schools. The main change to Subject Access Requests under the GDPR is a reduction in the deadline, from 40 days to one month- New data subject rights
The GDPR will introduce various new rights for data subjects and will further enhance existing rights. For example, data subjects will have the ‘right to be forgotten’, meaning that they can require a school to delete their personal data- Processors
There are additional provisions that must now be contained in the written contracts between a school and each of its processors (for example, IT providers, payroll providers and cloud storage providers)- New criminal offence
The Data Protection Bill will introduce an offence for altering, erasing or concealing personal data with the intention of preventing its disclosure in response to a Subject Access Request
5 key risk areas for schools
1. Accountability
Schools must ‘demonstrate’ compliance with the GDPR. You should ensure that you are keeping records of processing activities, consents, Data Protection Impact Assessments. You should also have robust data protection policies and training for staff2. Information security
Having staff training and policies, taking the privacy by design approach (as described above) and carrying out Data Protection Impact Assessments are all essential for keeping personal data secure. Your IT team should put in place technical measures to guard against risks as well. Having a data breach policy in place is highly recommended3. Transparency
You should update your privacy notices to include the additional information required under the GDPR. Privacy notices should be written in plain language, especially when addressed to children4. Data subject rights
Staff should be trained to recognise when a right is being exercised, particularly because the timescales for compliance are becoming shorter. You should be able to locate personal data easily in response to subject access requests5. Marketing and fundraising
Marketing and fundraising communications are subject to special rules. In particular, consent must be obtained before sending certain communications by electronic means, e.g. by email. With the more restrictive definition of consent introduced under the GDPR, schools will need to check that any consents they rely on meet the more onerous requirementsWhere to start?
The best place to start is to carry out an audit on the personal data that your school holds. This should enable you to have a firm grasp on your data flows so that they can begin to tackle the areas outlined above. At VWV, we have a free template which schools can use as a starting point for the audit process.
Staff training is vital. We offer GDPR Data Protection and Information Security e-learning modules as part of our compliance management solution, My Onstream. This automates and simplifies the task of training school staff, and helps ensure that you meet the requirements of the GDPR reliably and cost effectively.
If you would like a copy of the template audit, information about privacy notices or if you would like to discuss how we can assist with your preparations for the GDPR, please contact Andrew Gallie, in VWV’s Data Protection team, on 0117 314 5623 or Claire Hall on 0117 314 5279. Alternatively, send an email to agallie@vwv.co.uk. More information about staff training via My Onstream can be found at mos.vwv.co.uk, and Andrew or Claire would be happy to discuss that with you.
[post_title] => What should schools do about the new data protection laws? [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => what-should-schools-do-about-the-new-data-protection-laws [to_ping] => [pinged] => [post_modified] => 2018-02-14 09:56:49 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [13] => WP_Post Object ( [ID] => 863 [post_author] => 63 [post_date] => 2017-12-15 00:00:00 [post_date_gmt] => 2017-12-14 23:00:00 [post_content] =>
Every year, the charity trustees of a charitable school (usually the governors) complete the Charity Commission’s annual return. The annual return includes a declaration that all serious incidents which should be reported to the Charity Commission have been – and it would be a criminal offence to make a false declaration. What, then, are serious incidents and how should they be reported?
The basics
Reporting to the Commission is additional to any other reports that need to be made. The Commission expects charities to manage incidents responsibly. That includes notifying other regulators as appropriate and, if a crime is suspected, reporting to the police (or Action Fraud). The Commission expects all charities to be familiar with relevant regulators and reporting requirements.
The Commission publishes guidance about what to report, and how, which underwent a major update in September 2017.
Evaluating seriousness
A report should be made of any incident that results in, or risks, significant loss of the school’s money or assets, damage to the school’s property or harm to the school’s work, beneficiaries (pupils) or reputation.
The guidance is example-driven and should not be treated as a definitive list. Just because something is not covered does not mean it should not be reported. For novel issues, the guidance needs to be used to judge the level of significance or seriousness at which the Commission expects a report to be made.
If you are unsure whether to report, the Commission recommends reporting anyway. This makes practical sense, giving the school’s charity trustees confidence to make their declaration in the annual return.
Time for making reports
Reports should be made as soon as is reasonably possible after the incident, or immediately after the school corporately becomes aware of it.
Who makes reports?
The school’s charity trustees can delegate report-making, but they remain responsible for the report. They should be clear to whom they have delegated authority to make the report and need to be confident that those people will make reports when appropriate.
A framework
In the midst of managing a serious incident, reporting to the Commission is not always an obvious priority amongst other pressing calls for time and resource. It is, therefore, important that the school has an effective internal risk framework for identifying, managing and reporting risk, which staff involved in managing incidents use, and are familiar with. Timely serious incident reporting should be an integral part of this policy and every other policy designed to manage or eliminate particular risks, such
as safeguarding.
Particular examples of serious incidents
We stress that any incident risking significant loss of the school’s money or assets, damage to the school’s property or harm to the school’s work, beneficiaries (pupils) or reputation should be reported. The Commission’s examples, which give a flavour of the requirement include:
- Fraud and theft of any assets of the charity including information
- Money laundering
- Unverified or suspicious donations totalling £25,000 or more
- Suspicious financial activity (being asked to cash cheques, convert currency or pay to release donations)
- Other significant financial loss including substantial loss to premises, litigation losses, regulatory penalties and any loss totalling over £25,000
- Links to terrorism and extremism including paying bribes or ransoms
- Allegations of abuse or mistreatment whilst in the care of the school or by someone connected with the school
- Allegations of abuse or mistreatment connected with the school’s activities
- A breach of policies or procedures that has put beneficiaries at risk, for example, failing to apply safer recruitment standards
- A trustee is disqualified from acting
- Insolvency
- Banking services are withdrawn and it is difficult to secure alternatives
- Police investigation, significant investigation by another agency, investigations which make significant adverse findings or which involve potential adverse media interest
- Where a report is made to the Information Commissioner’s Office in connection with fundraising
- Major governance issues including mass resignations
- Criminal proceedings in connection with the school or someone’s role there
The Commission also says that any actual or suspected criminal activity should be reported and that anything reported to the police or Action Fraud should be reported to the Commission.
What should you include in your report?
The report is the school’s opportunity to reassure the Commission that it manages the kind of risk raised, that the incident was properly managed and that policies and procedures are being reviewed in the light of the incident.
If there is a risk to the school’s reputation, it is also important to explain how the risk is being managed, including whether the school has in place arrangements for handling media interest and whether it has engaged PR specialists.
The Commission recommends that the report covers:
- Who is making the report and their connection to the charity
- Their authority to report on behalf of the school’s charity trustees
- Which of the charity trustees are aware, for example, all or only the Chair
- What happened and when the school first became aware of it
- The action being taken to deal with the incident and prevent future problems
- Whether and when it was reported to the police or another regulator/statutory agency (including official reference numbers)
- Media handling lines you may have prepared
Where theft or fraud are involved, the Charity Commission wants additional detail which is set out separately, but accessible through a link in the serious incident guidance.
Andrew Wherrett
Making the report
Most reports will be by email or emailed letter. In some cases, the Commission may agree to receive regular spreadsheets notifying and updating reports if that would be more effective.
Be aware that the Commission could receive a freedom of information request about the report. The Commission should consider whether exemptions apply before deciding whether to disclose. Schools may feel more comfortable if they avoid including unnecessary information in reports and flag confidential and sensitive information which they consider should be treated as exempt from disclosure.
What happens after the report is made?
The Commission usually responds to serious incident reports very quickly. Sometimes they ask for more information and sometimes they simply ask to be kept updated.
The Commission will decide whether it needs to take any other action. In many cases, it will be satisfied that the charity is managing the incident appropriately. If the school has told the Commission that it will do something, the Commission may follow up to check.
Conclusion
In order for the school’s charity trustees to have confidence in the annual return declaration, they need to be confident in the school’s policies and procedures around risk management and their implementation. They may wish to review their main risk-management policy and any other policy handling risk to ensure that risk is being properly recognised, managed and reported internally with sufficient speed.
Where an incident takes place, the school’s charity trustees need to be confident that serious incident reporting is being considered and that accurate, robust decisions are being taken about whether to report and what to report.
At VWV, we can help schools to draw-up policies to manage risk. We can advise schools deciding whether an incident must be reported and prepare a serious incident report. We can also guide the
school through any follow-up with the Charity Commission. In summary, we can help every step of the way with serious incident reporting.To be kept up to date with regulatory compliance, please ask for a demo of My OnStream. My OnStream is a cloud-based compliance management solution tailored to schools, providing a range of compliance services supported by VWV’s sector-leading lawyers. If you would like to find out more visit: www.vwv.co.uk/mos/schools
[post_title] => It's time to get serious, says VWV's Andrew Wherrett [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => its-time-to-get-serious-says-vwvs-andrew-wherrett [to_ping] => [pinged] => [post_modified] => 2017-12-13 11:02:58 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [14] => WP_Post Object ( [ID] => 997 [post_author] => 57 [post_date] => 2017-11-02 00:00:00 [post_date_gmt] => 2017-11-01 23:00:00 [post_content] =>
Many schools, as part of their credit control procedures, will, from time to time, need to initiate civil claims for overdue school fees, for example, where they are in dispute and/or the parent/debtor simply refuses to co-operate.
Civil claims, including debt claims, are subject to the Civil Procedure Rules 1998 (Rules) which govern how parties conduct litigation in England and Wales, and which include procedures for dealing with pre-claim correspondence.
The rules have always encouraged cooperation between the parties and to consider alternative dispute resolution wherever possible. However, until now, debt claims have been subject to a general pre-action protocol under the Rules which gave only broad guidelines and indicative timescales which gave debt claimants significant flexibility in how to pursue debt claims.
As of 1 October 2017, the Rules have been updated to include a new specific Pre-action Protocol for Debt Claims (Protocol) which is far more prescriptive. As the Protocol applies to all businesses claiming payment of a debt from an individual debtor, it will apply to the collection of all school fee debts.
Main changes
More information is required in and with letters of claim, standard forms have been introduced and debtors should be given more time to respond and an opportunity to make payment proposals throughout the pre-action process.
The aims of the Protocol are to:
(a) Encourage early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
(b) Enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
(c) Encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue)
(d) Support the efficient management of proceedings that cannot be avoided.
The detail
The new procedure requires ‘enhanced’ letters of claim, which set out the following information:
(a) The amount of the debt
(b) Whether interest or other charges are continuing
(c) The date of the agreement, the parties to it and confirmation that a copy of the written agreement can be requested from the school
(d) Where the debt has been assigned, the details of the original debt and creditor, when it was assigned and to whom (following a merger, acquisition or change of legal entity, for example)
(e) If regular instalments are currently being offered by or on behalf of the parent/debtor, or are being paid, an explanation of why the offer is not acceptable and why a court claim is still being considered
(f) Details of how the debt can be paid (for example, the method of and address for payment) and details of how to proceed if the parent/debtor wishes to discuss payment options
(g) The address to which the completed reply form should be sent. In addition, the school needs to enclose:
(i) Either an up-to-date statement of account for the debt (including details of any interest and administrative or other charges added); or the most recent statement of account accompanied by sufficient detail about additional charges to bring it up to date; or a
(ii) Statement in the letter of claim with all of this information
(iii) An information sheet and reply form (in a prescribed form)
(iv) Financial statement form (in a prescribed form)
James Garside
Providing extra time
Please note that schools are now required to allow parent/debtors 30 days to respond to a letter of claim. They should respond on the reply form provided.
If a parent/debtor does not reply within 30 days, the school can usually commence court proceedings. However, the 30-day grace period may be extended if the parent/debtor indicates that he or she is seeking debt advice, requests further documentation from the school or requires more time to pay.
Seeking debt advice
If the parent/debtor indicates that he or she is seeking debt advice, the school is required to allow the debtor a reasonable period to obtain such advice.
Further documentation
Should the parent/debtor request copies of any relevant documents from the school, these should be provided within 30 days.
If the parent/debtor then requires more time to consider them before responding to the claim, a reasonable extension should be given.
More time to pay
If the parent/debtor requires more time to pay, the Protocol requires the school and the parent/debtor to try to reach an agreement for the debt to be paid by instalments, based on the parent/debtor’s income and expenditure. If the school is unwilling to agree this, it should say why in writing (for example if a previous instalment arrangement has been broken without reasonable justification).
ADR
If the parent/debtor fails to complete the reply form fully, the onus is nevertheless on the school to contact them to obtain any further information needed to properly understand their position.
If the debt is disputed, the parties should exchange information and disclose documents sufficient to enable them to understand each other’s position. The school must provide any document or information requested or explain why the document or information is unavailable within 30 days of receipt of the request.
If settlement cannot be reached, the parties are obliged to take appropriate steps to resolve the dispute without commencing court proceedings and, in particular, should consider the use of some form of alternative dispute resolution (ADR).
Proceedings
The school should give the parent/debtor a minimum of 14 days’ notice of its intention to commence court proceedings (unless, for example, the limitation period is about to expire).
As a result of the changes, the issue of proceedings can now be delayed by up to 90 days.
Failure to comply
Failure to comply with the new Protocol may result in:
(a) Reputational risk
(b) The stay of court proceedings to remedy failures to comply with the Protocol and delayed collection of debt
(c) Additional cost sanctions (such as payment of the debtor’s legal costs or a failure to
recover the school’s own costs)
(d) An inability to recover interest from a debtor (or recovery at a reduced rate).
What can you do to prepare?
The Protocol demands more patience when collecting outstanding debts and an acknowledgement that the recovery of school fee debts will be more time consuming in the future. Court proceedings should be an option of last resort.
In order to mitigate the effect of these changes on cash flow, at VWV we recommend that:
• Your admission arrangements are robust
• You consider undertaking credit checks against parents before a place is offered
• You react swiftly to default, using exclusion procedures where appropriate, to avoid the unnecessary escalation of debt
• You seek a written record of a debtor’s/parent’s:
- Income and outgoings before entering instalment plans
- Admission of their liability to pay the debt if it is allowed to accrue
• Debts are referred for legal collection procedures at an earlier stage.
To be kept up to date with regulatory compliance, please ask for a demo of My OnStream. My OnStream is a cloud-based compliance management solution tailored to schools, providing a range of compliance services supported by VWV’s sector-leading lawyers. If you would like to find out more visit www.vwv.co.uk/mos/schools.
[post_title] => Debt claims: follow the rules [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => debt-claims-follow-the-rules [to_ping] => [pinged] => [post_modified] => 2017-10-25 11:01:54 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [15] => WP_Post Object ( [ID] => 1419 [post_author] => 59 [post_date] => 2017-06-04 00:00:00 [post_date_gmt] => 2017-06-03 22:00:00 [post_content] =>In July 2016, the government published a report based on a survey conducted with 30,000 Year 10 pupils to identify trends in pupil health and well-being in schools across England, the findings of which were used to compare the results of the same survey carried out in 2005.
In particular the report found that one in three female pupils are suffering psychological distress by the time they start their GCSEs. Although girls were already displaying greater levels of psychological distress than their male counterparts in 2005, this figure is now more than double at 37%, with only 15% of boys affected by feelings of worthlessness or unhappiness. The report found that these problems are attributed to:
- Global economic changes – how this has negatively affected pupils’ views on future career and opportunities
- Advancements in technology – widespread access to the internet and social media through smartphones and video cameras, places additional pressures on pupils that were not prevalent in 2005
- Socio-demographic factors – teenagers from relatively advantaged backgrounds where at least one parent has a degree-level education are more likely to suffer symptoms of psychological distress than those from less advantaged backgrounds.
Adding to this worrying picture, the University of Sheffield has this month published a report on the negative impact of social networking on children. This found that 10–15-year-olds who spend an extra hour per day on sites such as Facebook and Snapchat are 14% less happy about their schoolwork, the school they attend, their appearance, family and life in general.
Clear systems and processes as well as continuous professional development can also help teachers to identify emerging mental health problems in pupils
What is the government’s response?
While broad spectrum initiatives are required to tackle mental health issues in schools, the 2016 report concluded that this is a long-term problem and that low-cost and/or simple initiatives will be difficult to identify.
In January the Prime Minister set out the government's response to the 2016 NHS report entitled the Five Year Forward View for mental health. These plans included a £15m reallocation of government funding to provide safe spaces, crisis cafes and community clinics for young people in England. Together with its wider investment into digital mental self-help services, the government has committed to evaluating emerging models and approaches to mental health so that schools can work more closely with local NHS services for young people.
Within schools, the government is intending to operate a pilot scheme to offer teachers mental health first-aid training through providers such as Mental Health First Aid England which is already popular amongst many employers. However, at this stage the scheme is limited to secondary schools only.
While the government proposals may go some way to help schools tackle the problem, mental health charities are critical that the reallocation of funds do not go far enough or will not make a practical difference on a local level, particularly in light of existing budgetary cuts to benefits, and local authority funding for mental health services and support for young people.
What role do schools currently play?
Under Part 8 of the Education (Independent School Standards) Regulations 2014, proprietors must ensure that persons with leadership and management responsibilities at the school actively promote the well-being of pupils. This includes not only a pupil’s physical health but also mental health and emotional well-being.
In addition, the DfE guidance on mental health in schools states that schools should identify and address these issues at an early stage by working closely with parents, carers and pupils when making decisions. Clear systems and processes as well as continuous professional development can also help teachers to identify emerging mental health problems in pupils, and make referrals to local GPs, support services provided by voluntary organisation or CAMHS where appropriate.
Although the government is beginning to take meaningful steps in responding to mental health issues in schools, the research clearly demonstrates that this is part of a wider ever-growing societal problem
There are no current plans to further legislate around schools’ mental health obligations, however, the research clearly demonstrates a developing crisis to which schools must respond in order to promote the mental health and emotional well-being of pupils today. In the absence of a timetable for implementation of the government’s proposals, now may be an opportunity for schools to review their current approach to pupils’ mental health. Schools may wish to consider the following from a ‘best practice’ perspective:
- Training – a review of the type of courses or CPD offered to all staff and those in positions of senior leadership and whether it meets the school’s current needs.
- Systems and processes – a review of existing policies and procedures to ascertain how staff can best monitor and record pupils’ behaviour to identify patterns.
- Working with parents, carers and pupils – increased involvement and input from parents and carers could help teachers better understand patterns of pupil behaviour related to psychological distress. Some schools have implemented peer mentoring facilities for pupils, introduced concern boxes or built upon existing counselling services to encourage pupils to seek self-help.
- External agencies – better signposting for staff within policies when making referrals to external support services or CAMHS in more serious cases.
- Other resources – charities such as MindEd and YoungMinds have developed a range of free online tools and e-learning programmes to provide further information and guidance for staff to help identify emerging mental health problems.
Although the government is beginning to take meaningful steps in responding to mental health issues in schools, the research clearly demonstrates that this is part of a wider ever-growing societal problem. We see mental health issues arising across the spectrum of our work for independent schools: parental concerns and complaints; allegations of educational negligence; governance of safeguarding and well-being on inspection.
To be kept up to date with regulatory compliance, please register for free access to our dedicated compliance portal for schools at: vwv.co.uk/compliance-onstream/about-my-onstream.
Louise Gilmer is a solicitor at leading education law firm VWV. Louise can be contacted on 0117 314 5356 or at lgilmer@vwv.co.uk.
[post_title] => Mental health in schools: a developing crisis [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => mental-health-in-schools-a-developing-crisis [to_ping] => [pinged] => [post_modified] => 2017-05-24 17:16:03 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [16] => WP_Post Object ( [ID] => 2297 [post_author] => 1 [post_date] => 2016-08-24 00:00:00 [post_date_gmt] => 2016-08-23 22:00:00 [post_content] => One of the many unknowns of the Brexit vote is its impact on the recruitment of international students by independent schools. British education is a global export and independent schools can expect to continue to attract pupils the world over, particularly in a post-Brexit environment of devalued sterling. But regulation of overseas recruitment is notoriously complex and fickle, subject to seemingly random and multiple changes as UK Visas and Immigration (UKVI) constantly change the ground rules. We have been helping schools navigate the minefield of Tier 4 compliance ever since the introduction of the points based system in 2009 and we see the same mistakes made repeatedly. So below are our top five tips for international student recruitment and Tier 4 compliance. Who knows, post-Brexit it is possible that EU students may soon need Tier 4 visas too.Be clear about who is responsible for Tier 4 within the school and invest in training for them
Whilst very few schools will need an FTE whose sole job is Tier 4 sponsor and visa compliance, all schools with a Tier 4 licence will need one or more member(s) of staff taking responsibility and ownership for Tier 4 compliance. Don't expect your staff to muddle through on their own. We run termly training sessions, and other high quality training is available through British Boarding Schools Workshop events. And however much schools complain that they are educators, not border police, when it comes to Tier 4 this is exactly the role that schools perform. As a judge commented recently: 'It should not be forgotten that colleges are performing functions which used to be undertaken by entry clearance officers or other [UKVI] officials.' So the standards expected by UKVI are high.Don't make common but potentially costly mistakes
All of the following are potentially terminal in relation to the school's Tier 4 licence, but easily avoided:
- Failing to report a change of ownership of the school. We are currently working with a school threatened with licence revocation for failure to report a change of ownership several years ago.
- Sharing log-in details or passwords for the Sponsor Management System (SMS). On a recent visit to a school in preparation for a UKVI compliance inspection, the first thing we spotted was that all the school's SMS details were inked on the inside cover of a lever arched file containing Tier 4 pupil details.
- Failing to report non-enrolment of pupils who are refused visas. It seems somewhat counter-intuitive that, after UKVI has declined a visa to a pupil, the school still needs to report the pupil's failure to enrol. But an FE college had its Tier 4 licence revoked on this ground.
Sweat the small stuff
Whilst the following mistakes are unlikely to be fatal for a school's Tier 4 licence, they are very prevalent across the sector.
- Keep a copy of the parent's consent letter on the pupil's file. This is a requirement for children but easily overlooked since it doesn't appear in the list of documents which are required to be retained by schools, Appendix D to the Sponsor Guidance.
- Provide details of agents, in the UK or abroad, who have helped you to recruit pupils. This has been a requirement since 2009 but very few schools are making regular reports to UKVI of agents who have been involved in international pupil recruitment.
- Don't issue a Confirmation of Acceptance of Studies (CAS) for combined GCSE and A-level study. Again, this has never been allowed - the rule is one CAS per course, and UKVI regards GCSEs and A-levels as separate courses. But some senior schools are still wasting their CAS - and ramping up their visa refusal rate - by ignoring this requirement.
Matthew Burgess: 'However much schools complain that they are educators, not border police, when it comes to Tier 4 this is exactly the role that schools perform'Be aware that UKVI expects your school to take steps to interrogate the immigration/visa status of all your pupils in appropriate circumstances, not just those you are sponsoring under Tier 4
The vast majority of your pupils will not need any explicit immigration permission to study at your school. But some will, and you should be ready to explain to UKVI how you satisfy yourself that all pupils are properly in the UK - and prepared to take action if necessary. So, for example:
- Do you specifically ask overseas applicants whether they need you to sponsor them under Tier 4?
- Do you ask for sight (and copies) of dependent visas or other non-Tier 4 visas?
- Does your parent contract allow you to terminate the contract if it transpires that the pupil is not lawfully able to remain in the UK?
- Do you take express Data Protection Act permissions to share information about pupils and parents with UKVI and the Home Office?
Control what you can when it comes to Basic Compliance Assessment metrics
The visa refusal rate means, in practice, that any school assigning 20 CAS each year can only afford to have one visa refusal. So eliminating errors, both by your staff in issuing the CAS and by pupils/parents, is vital. We have developed guidance packs which schools are increasingly using to help pupils make compliant visa applications, and which assist the school if it needs to make representations to UKVI that they should exercise their discretion in renewing the school's Tier 4 Sponsor Status annually. Simple steps that schools can take include:
- Asking pupils to complete an immigration history form prior to assigning the CAS. Pupils will have to answer these questions in any event when applying for their visa, and it's better for the school to know in advance if a pupil is unlikely to obtain a visa due to problems with their immigration history.
- Asking to review bank statements prior to submission. Problems with demonstrating adequate funds is one of the most common reasons for visa refusals and whilst it does require some investment of resource up front by schools in screening bank statements (or asking us to do it for you), it also minimises the risk of visa refusals.
- Where pupils will not be boarders, reviewing the proposed residential arrangements and notifying the Local Authority where private fostering is involved. For day pupils under 16, the options for their living arrangements are limited and many visas are refused because of a failure to understand what UKVI will permit.
More information about VWV's range of Tier 4 compliance services for independent schools is available at www.vwv.co.uk/compliance-onstream or by emailing mburgess@vwv.co.uk
[post_title] => British education after Brexit [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => british-education-after-brexit [to_ping] => [pinged] => [post_modified] => 2018-11-26 15:14:01 [post_modified_gmt] => 2018-11-26 15:14:01 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [17] => WP_Post Object ( [ID] => 3615 [post_author] => 39 [post_date] => 2015-06-03 00:00:00 [post_date_gmt] => 2015-06-02 22:00:00 [post_content] =>The crystal ball gazing can stop. No need to continue to think about what a School Partnerships Tsar – or, for that matter, UKIP policies on grammar schools – might mean for the independent sector. We now know we have a Conservative majority government implementing what my temporary successor at the Independent Schools Council recently labelled “a set of full-blooded Conservative education policies”. But what does this mean for the independent sector? Does the demise of coalition politics herald a shift in direction or simply more of the same?
This much we know
The Queen's Speech is the starting point and there are at least four bills which will have an impact on the education sector. First, an Education and Adoption Bill continues the coalition's focus on raising standards in schools, with new powers to speed up the process of changing a failing school's leadership and turning it into an academy. Those considered to be “coasting” – not performing as well as they could be – would also face being taken over. Taken together with the Conservative's manifesto pledge to open 500 new free schools, these measures arguably signpost a more competitive marketplace within which all schools will operate.
Secondly, a Childcare Bill is planned which will double the provision of free childcare. Under the proposals, parents in England would be entitled to 30 hours a week of free childcare for their three- and four-year-olds for 38 weeks of the year. The question of whether more funding will be made available is unanswered – remember that the last increase, from 12.5 hours to 15 hours, was unfunded. Existing commitments to replace employer childcare vouchers with a tax-free childcare allowance remain unchanged, representing an opportunity for boarding schools and others providing wrap-around care.
Two other bills have the potential for consequences for schools. Another Immigration Bill is promised, with a list of measures designed to control immigration, including a new offence of illegal working – with police given the power to seize the wages paid to illegal workers as the “proceeds of crime”. Schools with a Tier 4 licence will be more concerned by the continued inclusion of their overseas pupils within the “net migration” figures. The Conservative manifesto promised further reforms of the student visa system, with “new measures to tackle abuse and reduce the numbers of students overstaying once their visas expire”, a “review of the highly trusted sponsor system for student visas” and “targeted sanctions for those colleges or businesses that fail to ensure that migrants comply with the terms of their visa”. The rhetoric remains steadfastly anti-international students, even if the Home Office has always been privately reassuring about the schools' sector.
Finally, an Extremism Bill sets out a wide range of measures to tackle the broadcasting of extremist material but also includes proposals for employers to check whether an individual is an extremist, barring them from working with children. This echoes the Counter-Terrorism and Security Act 2015, legislation introduced immediately prior to the election, which is likely to require significant development of schools' safeguarding and IT acceptable use policies as more duties are imposed on schools to prevent radicalisation of their pupils.
Regulation and compliance – more of the same?
So much for the new. How about the constants – which for independent schools have been all about increasing regulatory compliance burdens?
When Lord Nash wrote to the former chairman of the Education Select Committee in March 2014 setting out the coalition's wide-ranging programme of reform of the regulation of independent schools, he wasn't mincing his words. The bitter consultations last year on revised Independent School Standards and a reformed ISI were only the start. Whilst the suspicious-looking references to “national norms” were successfully removed by the time the standards were published in January 2015, new levels of regulatory uncertainty were introduced, such as the requirement to backdate teacher prohibition checks to April 2012 and the new proprietor prohibition checks which are still undeliverable.
In fact, if you like to calculate the rate of increase of statutory regulation, you could say that the new standards represent a 14 percent increase in regulatory burden with the introduction of an eighth standard – leadership and management. Governors and leaders will now be judged separately on how well they are discharging all their other compliance tasks, leading to the understandable concern that a single regulatory failing is now likely to result in multiple findings of non-compliance and, presumably, an increase in statutory notices and requirements for action plans.
Indeed, since January 2015 and the changes introduced by the new standards, schools have had to contend with:
• revised statutory guidance on childcare disqualification, replacing guidance only introduced (to general dismay and disbelief) four months previously
• revised national minimum standards for boarding schools and residential special schools – echoing many of the changes in the standards but also introducing specific changes, ranging from a renewed emphasis on each individual pupil's “special requirements” (a wide-ranging definition encompassing “any needs arising from physical, medical, sensory, learning, emotional or behavioural difficulties which require provision which is additional to or different from that generally required by children of the same age in schools other than special schools”) to specific standards requiring schools to provide eating assistance which promotes “dignity and choice” for pupils with disabilities
• reissues of ‘Keeping Children Safe in Education’ and ‘Working Together to Safeguard Children’, together with a raft of other non-statutory advice notes produced by the Department for Education in a pre-election blur
• the prevent duties on radicalisation mentioned above and draft statutory guidance due for implementation shortly
• not one but two complete reissues of Tier 4 sponsor guidance, including the abolition of highly trusted status
• an ongoing consultation on changes to the ISI inspection framework, with proposals for shorter, more frequent, compliance-only inspections with separate broader educational inspections
• a reduction in the age (from three to two) at which schools offering nursery or day-care provision need to register with Ofsted, buried in an omnibus piece of pre-election legislation.
A compliance toolkit for schools
This degree of change has led us to think about how we can best continue to serve the sector. Concern about keeping up to date with regulatory change and the effects of non-compliance feature regularly in our dialogue with school clients. As a firm, we are fortunate to have invested heavily over the years not just in our documentation and knowhow but also in our people – to such an extent that there are over 50 lawyers at VWV who work regularly for independent schools. If we can't keep schools up to date with regulatory change, then arguably no one can.
So we have now launched a compliance toolkit for schools. A subscription-based service, it allows schools to select from a menu of legal and regulatory modules where we will guarantee to provide regular notification of changes and recommendations of what amendments might be required to school policies, procedures or contracts. Other exciting functionality is still under wraps, but our aim is for it to harness the collective knowledge of all our specialist lawyers to deliver peace of mind to school leaders. You can register interest by emailing ComplianceToolkit@vwv.co.uk
Matthew Burgess is a partner at leading education law firm Veale Wasbrough Vizards. T: 0117 314 5338 E: mburgess@vwv.co.uk W: www.vwv.co.uk
[post_title] => Adjusting to a new political landscape [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => adjusting-to-a-new-political-landscape [to_ping] => [pinged] => [post_modified] => 2015-06-03 14:52:46 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [18] => WP_Post Object ( [ID] => 3749 [post_author] => 17 [post_date] => 2015-04-24 00:00:00 [post_date_gmt] => 2015-04-23 22:00:00 [post_content] =>The Department for Education (DfE) raising childcare disqualification requirements through its publication of an advice note in October 2014 caused an understandable stir across the sector. The advice brought the implications of the Childcare Act 2006 (the Act) and the Childcare (Disqualification) Regulations 2009 (the Regulations) to the attention of the sector for the first time and added an additional obligation on the accepted practices on pre-recruitment checks of staff working in, or responsible for, early- and later-years childcare.
We recently reported on how the Regulations affected schools. It was noted at this time that updated guidance from the DfE was to be published.
As anticipated, the DfE issued Statutory Guidance (the Guidance) on disqualification under the Act and the Regulations, which replaced the October 2014 advice. Schools must have regard to the Guidance when carrying out their duties to safeguard and promote the welfare of children – and will be inspected on compliance by ISI.
The Guidance provides greater clarity and also introduces a number of new elements to the disqualification regime. This means that schools which have already carried out an analysis of which staff are in scope should reconsider their position. In some cases, schools are likely to need to approach additional individuals who are now in scope; in others, schools will need to destroy information already gathered on staff members who are now expressly out of scope.
What settings are covered by the Regulations?
The settings which come under the Regulations remain unchanged and include:
• Early-years provision, including usual school activities and any other supervised activity (up to the 1 September after the child's fifth birthday) on the school premises during or outside the normal school day
• Later-years provision (up to age 8) which takes place on school premises outside of the normal school day, including, for example, breakfast and after-school clubs.
Secondary schools are not covered unless they offer any early- or later-years provision.
Which employees are covered by the Regulations?
The scope of school employees covered by the Regulations is now clearer, with a proper emphasis on the provision or management of 'childcare'. This clarity should help schools in determining which of their employees are covered in the first place and in thinking about redeploying employees, pending receipt of an Ofsted waiver, if necessary.
The roles within scope are:
• Anyone employed in connection with the provision of early-years or later-years provision
• Anyone directly concerned in the management of early-years or later-years provision.
The Guidance interprets this as staff employed directly to provide childcare, where 'childcare' means any form of care for a child, which includes education for a child and any other supervised activity for a child. There are helpful examples in the Guidance of who is and is not covered.
Roles under the management aspect will include the head and may also include other members of the leadership team, as well as those involved in the day-to-day management of the provision. This may include the bursar, but ‘office staff’ are unlikely to be covered.
Helpfully, the Guidance expressly states that staff such as caretakers, cleaners, drivers, transport escorts, catering and office staff who are not employed to provide childcare directly are not covered by the legislation. Similarly, most staff who are only occasionally deployed and are not regularly required to work in relevant childcare will not automatically come within scope.
The Guidance does, however, widen the definition of the staff to include employees, casual workers, self-employed staff, volunteers and trainees. This means that schools which have to date considered 'employees' only will need to consider the broader range of individuals who work in the setting.
Gathering information and communicating with staff
The Guidance introduces a new flexibility around how schools communicate with staff about the Regulations, with an emphasis on choice for schools. Schools are required to make staff aware of what information will be needed of them and how it will be used to make decisions about disqualification. This includes drawing the attention of staff to the DfE guidance and related guidance from Ofsted.
In relation to information gathering, the Guidance contains an explicit exhortation that schools are not required to ask staff to complete self-declaration forms. However, while schools are now able to consider different approaches to gathering the required information, it seems that, in most cases, self-declaration forms remain the best way of meeting all the requirements. Importantly, the new guidance removes the requirement for schools to repeat checks on a regular basis. Instead, schools must explain to staff that they should inform the school if their circumstances change and should have a contractual obligation to do so.
The Guidance introduces a new requirement for schools to notify Ofsted when information that a member of staff falls within the grounds for disqualification is received. Whether this requirement applies to independent schools exempt from registration under the Act is not clear and therefore it is appropriate for all schools to have regard to this requirement until any further clarification is provided.
What remains the same?
Disqualification by association, arguably the most controversial aspect of the Regulations, remains in place. This means that a person will be disqualified if they live in the same household as another person who is disqualified from working under the Regulations or live in a household in which any such person is employed.
The Guidance includes some new wording on the obligations of the school in relation to gaining information in this regard. Schools are advised that they must ask staff to provide, to the best of their knowledge, information about someone who lives or is employed in their household. Schools are also required to ensure that the information provided is adequate, accurate and relevant, but must not ask about spent convictions.
In relation to any information which is gathered about household members, schools must ensure that they are clearly informed about how and for what purpose the school will use their information. The Guidance also states that schools should not store personal data about household members without their consent and therefore schools will need to consider how to obtain consent – and what to do if this is refused.
Next steps
Schools should familiarise themselves with the Guidance and consider what actions they need to take now to ensure compliance with their responsibilities to safeguard and promote the welfare of children. The DfE has indicated that the Guidance will be reviewed in September 2015 and the minister for education has indicated that if re-elected, this layer of bureaucracy may be removed. So while schools must comply now and must be aware that this is an inspection standard, the narrow interpretation of the Guidance is recommended.
Simon Bevan is an employment partner at education law firm Veale Wasbrough Vizards
[post_title] => Childcare disqualification - the latest [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => childcare-disqualification-the-latest [to_ping] => [pinged] => [post_modified] => 2015-04-24 14:42:56 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [19] => WP_Post Object ( [ID] => 3873 [post_author] => 17 [post_date] => 2015-04-01 00:00:00 [post_date_gmt] => 2015-03-31 22:00:00 [post_content] =>
The Department for Education (DfE) published advice on the childcare disqualification requirements in October 2014. The advice has caused confusion and concern across the sector. It brought the implications of the Childcare Act 2006 (Act) and the Childcare (Disqualification) Regulations 2009 (Regulations) to the attention of the sector for the first time.
The Regulations apply to staff working in connection with or directly concerned in the management of:
• “early-years provision” (up to the 1 September after the child’s fifth birthday) on school premises during or outside the normal school day
• “later-years provision” (up to age eight) which takes place on school premises outside of the normal school day, including, for example breakfast and after-school clubs.
While there is still some confusion as to precisely which situations the Regulations apply to, this appears to be the latest technical position.
It is an offence for a school to knowingly employ a person who is disqualified under the Regulations. A person is disqualified if they are barred from working with children (by inclusion on the Children's Barred List) but also if any of the following applies:
• they have been cautioned for, or convicted of, certain criminal offences including violent or sexual criminal offences against children or adults
• an order has been made relating to a child in their care
• they have had a registration to be involved with childcare or children's homes rejected or cancelled
• they have been disqualified from private fostering
It is also an offence for a disqualified person to knowingly provide early or later years provision or to be directly concerned in its management.
Perhaps the most controversial aspect of the Regulations is that a person will also be disqualified if they live in the same household as another person who is disqualified from working under the Regulations, or live in a household in which any such person is employed. This is known as “disqualification by association”.
Disqualification and new recruits
The DfE advice and the Independent Schools Inspectorate (ISI) January handbook confirms that schools in the independent sector are required to start introducing an additional layer of pre-appointment checks in respect of staff who work in the relevant provisions, to ensure applicants are not disqualified under the Regulations.
Schools can achieve this by asking applicants to declare whether there are any grounds applicable to them, or anyone in their household, which disqualifies them. For example, schools could use a self-declaration form during the recruitment process. The DfE guidance suggests that the self-declaration form should seek the following information from applicants:
• details of any order (e.g. a care order), determination, conviction, or other ground for disqualification from registration under the Regulations
• the date of the order, determination or conviction, or the date when the other ground for disqualification arose
• information about the body or court which made the order, determination or conviction, and the sentence (if any) imposed
• a certified copy of the relevant order (in relation to an order or conviction)
Disqualification and existing staff
Schools may be hesitant to request self-declarations from existing staff. However, if you are already aware that someone is potentially disqualified, steps should be taken immediately to seek an Ofsted waiver. In its January handbook and subsequent update, ISI has stated that schools which are not currently requiring completion of self-declaration forms by existing staff will not be reported as non-compliant; however, this requirement will become an ISI regulatory standard from 30 March 2015.
Schools should prepare to require existing employees to complete self-declaration forms in advance of 30 March. We suggest that schools circulate these forms with a cover letter, memo or email to staff to “softly communicate” to colleagues the school’s obligation to carry out this additional check and provide support and care for individuals who may find this process difficult.
Of course, this is the best advice as we currently understand the position, but, with the DfE due to publish updated guidance by the end of February, by the time this article is published we will hopefully have clear guidance on whether the disqualification check is to be abandoned or narrowed in its application.
FAQs
From what date do the Regulations apply?
At present the Regulations apply to all staff employed in childcare settings, irrespective of when they commenced employment, and so appear to impose a retrospective obligation on schools.
What roles are covered?
These requirements apply to staff involved in the 'provision of childcare'. This is much broader than teachers and may involve any member of staff who engages with the children – for example, catering staff who have contact with pupils at breakfast clubs.
Do the Regulations apply to volunteers, self-employed staff or contractors?
The legal requirements only strictly apply to 'employees' and so there is no requirement to ask contract cleaning or catering companies to undertake the checks or to check self-employed peripatetic staff. However, we are aware that schools are checking on a risk-based approach, to safeguard the school’s reputation and as an example of best practice.
What happens if a school knows a member of staff is disqualified?
It is an offence for a school to knowingly employ an individual who is disqualified under the Regulations, and schools will need to take immediate action where they are already aware that an existing member of staff is disqualified. Schools should consider seeking advice if they are unsure how to proceed in this circumstance. It is important that the school complies with the Regulations but also provides support for the affected member of staff.
Where an existing member of staff is disqualified, they should either be suspended, or redeployed to duties within the school which do not involve working in connection with or managing services for, the affected age groups. If the redeployment is implemented effectively, the member of staff is able to continue working at the school. A risk assessment should be carried out before a member of staff is redeployed.
What can an individual do if they are disqualified?
An individual who is disqualified under the Regulations can apply to Ofsted for a waiver of their disqualification. The application for a waiver must be made by the individual and cannot be made by the school, although of course the school can offer support through this process. If the application for a waiver is successful, the member of staff and the school are no longer committing an offence, and the individual can be redeployed back to their original duties in early- or later-years provisions.
Do the Regulations apply in secondary schools?
The Regulations only affect staff working in connection with or managing services for early-years provision and later-years provision in certain circumstances (detailed above). Staff working in secondary schools with no contact with or management over children aged eight or over, or children aged between five and eight but not part of the relevant later-years provisions, are not subject to the Regulations.
However, the Regulations do apply to provisions which take place on school premises outside of normal school hours, such as breakfast and after-school clubs. Staff in secondary schools will be subject to the Regulations if they work with or manage relevant children under the age of eight in one of these settings.
Alice Reeve is an employment partner at leading education law firm Veale Wasbrough Vizards
Alice can be contacted on 0117 314 5383 or at areeve@vwv.co.uk
[post_title] => Anything to declare? [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => anything-to-declare [to_ping] => [pinged] => [post_modified] => 2015-03-30 13:38:38 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [20] => WP_Post Object ( [ID] => 4137 [post_author] => 17 [post_date] => 2015-01-06 10:48:00 [post_date_gmt] => 2015-01-06 09:48:00 [post_content] =>In an important judgment, the Employment Appeal Tribunal (EAT) has ruled that holiday pay should include recognition for overtime payments in certain situations. The decision in Bear Scotland Ltd v Fulton & anor has been widely publicised, but what will be the real impact of the decision, and to what extent will schools need to change their existing arrangements?
This article sets out some of the background to the case, and provides some guidance on the options for schools going forward.
The background
All workers have a statutory right under the Working Time Regulations 1998 (“the Regulations”) to a minimum paid holiday entitlement and may also have an enhanced contractual holiday entitlement.
The Regulations, which came into force on 1 October 1998, provide for a statutory minimum amount of paid holiday for workers. This was initially three weeks a year, but rose to four weeks in 1999, 4.8 weeks in 2007 and finally to 5.6 weeks in April 2009. This equates to a minimum of 28 days per annum for full-time workers (which can include bank holidays). Many workers receive a more generous entitlement under the terms of their contract. Part-time workers are entitled to a pro rata statutory entitlement under the Regulations. Workers are entitled to be paid during any period of statutory annual leave at the rate of a “week's pay” for each week's holiday.
The law in relation to holiday pay has been continually developing, partly because key terms in both domestic and European legislation are not defined and are open to varying interpretation. Interpreting national legislation, the Court of Appeal held 10 years ago that compulsory, non-guaranteed overtime should not be included in holiday pay under the Regulations. However, the European Court of Justice (ECJ) held more recently that holiday pay should reflect “normal pay” under the Working Time Directive 2003 (EU Directive), including elements of commission. The question of what is included as “normal pay” and particularly whether this encompasses elements of overtime has subsequently been interpreted in a number of recent cases, the most recent of which is the Bear Scotland case.
The implications of the Bear Scotland decision
In Bear Scotland it was argued that overtime which workers are obliged to work if requested but which employers are not obliged to offer (“non-guaranteed overtime”) should be included as “normal pay” for the purpose of calculating holiday pay. The EAT agreed with this argument, finding that, for the purposes of calculating holiday pay, “normal pay is pay which is normally received”.
There are three key points for schools to consider as a result of the ruling:
1 The EAT decision only considered “non-guaranteed” overtime. This is not the same as ad-hoc or voluntary overtime, and so some uncertainty still remains as to whether overtime which is not guaranteed and which is truly voluntary for the employee will fall within the scope of “normal pay”. However, the “direction of travel” and an earlier Employment Tribunal decision (which is indicative but not a binding precedent) do support that when overtime is normally worked this should be included in holiday pay. The principle is to effectively ensure that an individual receives the same pay when they are on holiday as they would if they were at work.
2 The entitlement only applies to the basic entitlement of four weeks annual leave under EU law and does not apply to the additional 1.6 weeks leave entitlement under national law or any enhanced contractual entitlement. This potentially serves to limit exposure to both back pay and payments going forward.
3 The EAT also held that travel time payments which exceed expenses incurred, and which amount to additional taxable remuneration, should also be included as “normal pay” when calculating holiday pay.
What does this mean in practice?
For schools, this is mainly going to affect support staff who receive overtime payments when they work over and above their core hours. For example, a school employs a catering manager who works term-time only. Their pay is based on an hourly rate which is paid for their working weeks and for five weeks holiday. This is then calculated as an annual salary and they are paid in 12 equal monthly instalments. Overtime is regularly worked to cover for functions and other events. The employee submits time sheets for the hours worked and is paid double time. This is usually paid in the following month's pay roll. Following the Bear Scotland decision the employee will need to allocate when they take their holiday (which can be during school holiday periods) and the statutory four weeks will then need to be paid based on their “normal pay” which should be based on the average pay they have received during an “agreed reference period” (for example, the previous 12 weeks). This will include their basic pay and their average weekly overtime.
Backdated holiday pay claims
There has been considerable concern over the impact of this ruling on employers, and particularly the possibility for claims to be backdated to 1998 when the Regulations were introduced. These claims are brought as unlawful deductions from wages. Previous case law had established that such claims could be claimed back to 1998 or the commencement of an individual's employment (whichever is later). Schools will be relieved to hear that the EAT in Bear Scotland included a limitation in this regard. Any break of three months during which there have not been any “unlawful deductions” will break the chain. This will prevent employees claiming for arrears prior to that date. It seems this will greatly restrict the scope for workers to claim arrears in holiday pay.
How far back can employees pursue claims for unpaid holiday?
In accordance with Bear Scotland claims will be out of time unless they are brought within three months of the end of an employee's employment; the last period of statutory holiday during which they did not receive “normal pay”.
Accordingly, it will be necessary to review the records of overtime worked, against holiday and pay records to assess how far back a claim could be pursued.
This is a new concept from the Bear Scotland case which does not accord with other decisions and so this may well be subject to appeal and so there is still a prospect that claims could be backdated further. However, it is important to note that if systems are changed so that there is no longer a “series of deductions”, then this will start the time running for the three-month limitation period, after which employees will no longer be able to pursue a claim.
It is important to note that, in this case, leave to appeal to the Court of Appeal was granted. It is likely that both parties will appeal both in relation to the principle of inclusion of non-guaranteed overtime and in relation to the time limits on arrears.
What action should schools take?
There are a number of options going forward:
1 Do nothing until after the appeal process has been concluded on the basis that until this point the legal requirements are uncertain. This is likely to be the most popular option. However, it might cause accrued liabilities to increase and, in particular, there is risk that the appeal could lead to an increased exposure to back-dated claims.
2 Change the approach to calculating holiday pay in accordance with the new decision for payments going forward. This deals with future liability but may prompt claims for arrears. However, after three months have passed schools will have the comfort that there will not be any further claims, as they will be out of time and cannot be re-opened. The downside of this is that you may be committing to payments unnecessarily, if the Bear Scotland decision is overturned on appeal.
3 Seek to settle any past underpayments. This would offer certainty, and avoids potential litigation. Any claims may also be smaller now than after appeal depending on the “limitation period” point. Again, however, there is a risk that the school could overpay, particularly if the legal position changes again in the future.
4 Schools may also wish to review more generally how overtime is offered and paid. It may be that it is more cost effective to use bank or zero-hour staff to undertake fluctuations in work rather than offer overtime particularly if this is on enhanced rates.
Alice Reeve is a partner at leading education law firm Veale Wasbrough Vizards T: 0117 314 5383 E: areeve@vwv.co.uk W: www.vwv.co.uk
[post_title] => Questions of entitlement [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => questions_of_entitlement [to_ping] => [pinged] => [post_modified] => 2015-01-06 10:48:00 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [21] => WP_Post Object ( [ID] => 4266 [post_author] => 17 [post_date] => 2014-11-25 11:40:00 [post_date_gmt] => 2014-11-25 10:40:00 [post_content] =>A number of family-related rights will change this academic year and these will impact on schools, their practices and their policies. This article examines these changes and how the changes may be implemented.
Shared parental leave
New regulations which implement a coalition agreement to introduce shared parental leave (SPL) will come into force on 1 December.
What is SPL?
SPL is a new entitlement for staff who become parents to be taken in the first year of their child’s life or in the first year after their child’s placement for adoption. This is a significant development to the statutory leave entitlements which employees in schools will be able to enjoy for children with an expected week of childbirth on or after 5 April 2015 or who are placed for adoption on or after that date. Unless parents opt in to the new SPL regime, the current maternity and adoption leave regimes remain the default position.
Under the new SPL regime, eligible staff will be entitled to a maximum of 52 weeks' leave and 39 weeks' statutory pay upon the birth or adoption of a child. Simply put, the former maternity leave and pay rights will be capable of being 'shared' between parents under SPL.
The existing requirement for the new mother to take compulsory maternity leave (two weeks in most cases) will remain. SPL will then be available on the balance of the mother's untaken maternity leave (50 weeks in most cases). It will be possible for a partner to take SPL at the same time as the mother is taking compulsory maternity leave.
SPL includes very complex notice requirements for employees to include a curtailment notice, a notice of entitlement and intention to take SPL or a declaration that their partner has served such a notice. Where notification obligations are met, SPL may be taken concurrently between parents or consecutively in blocks of one week. There is also scope for the leave to be taken intermittently, with multiple short periods of leave, so long as the total amount of leave does not exceed 52 weeks between the parents. The key to success in managing the SPL scheme will be early discussions with staff to know and understand their plans and to establish how, and if, they may be accommodated.
The introduction of SPL will result in additional paternity leave and pay, which was generally not taken up by new fathers, being abolished. Being able to take two weeks’ ordinary paternity leave and to potentially share in the 52-week entitlement to SPL provides potential compensation for this change.
Each parent taking SPL will be entitled to 20 KIT-style days, called SPLIT days, in addition to the mother's 10 KIT day entitlement during maternity leave.
An employee returning to work from SPL will have the right to return to the same job regardless of how many periods of SPL they have taken, provided that they have taken 26 or fewer weeks' leave (which includes periods of maternity, adoption, paternity and SPL) in total. After 26 weeks' leave, they only have the right to return to the same or a similar job.
What about pay?
Shared parental pay is available, subject to eligibility, for a maximum of 39 weeks. Statutory shared parental pay is payable at the same rates as statutory maternity pay.
To be eligible for SPL and benefit from the pay, parents must satisfy a two-stage test. Both the mother and her partner must fulfil what is called an ‘Economic Activity’ test so they must both have:
• worked for any 26 out of the 66 weeks preceding the child's birth and
• earned at least £30 gross salary per working week for any 13 of those 66 weeks.
• The individual who proposes to take SPL must also satisfy the following service requirement:
• 26 weeks' continuous service with the same employer at the 15th week before the child's due date and
• still be working for the same employer when they intend to take the leave.Schools will need to consider whether they offer enhanced parental leave pay. Schools may face discrimination or constructive dismissal claims. Schools should seek early advice as to the correct approach.
Changes to adoption leave
In addition to the introduction of SPL, amendments are being made to adoption leave rights. From 5 April 2015:
• the current requirement for 26 weeks' service before becoming entitled to adoption leave will be removed
• employees will not be able to take paternity leave if they have exercised a right to take paid time off to attend an adoption appointment in respect of that child and
• employees will be protected against suffering a detriment or being dismissed in relation to time off for adoption appointments.Changes to the right to time off for antenatal appointments
All pregnant employees have a statutory right to paid time off during working hours “for the purpose of receiving antenatal care”, irrespective of hours worked or length of service.
From 1 October 2014, the right to attend such appointments was extended so that qualifying employees and workers are now entitled to accompany a pregnant woman to an antenatal appointment.
What should schools do now?
The introduction of SPL is a significant development to the statutory leave entitlements which employees in schools will enjoy for children with an expected week of childbirth or who are placed for adoption on or after 5 April 2015.
Schools should now ensure that their family-related leave policies and procedures are up to date and that they are ready to address any SPL requests. Senior managers will need appropriate training so that they understand the requests for leave that they may receive.
In particular, it will be necessary to introduce a new SPL policy, which works alongside the school's maternity and adoption policies. The SPL policy should detail the new entitlement and procedure for requesting SPL. New forms will also need to be provided.
There will be a period of overlap between the existing right to additional paternity pay and leave and the new SPL and pay entitlement. Transitional arrangements mean that schools should amend their paternity policy to provide for an expected week of childbirth before 5 April and those on or after 5 April 2015.
Simon Bevan is a partner at leading education law firm Veale Wasbrough Vizards. T: 0117 314 5238 E: sbevan@vwv.co.uk W: www.vwv.co.uk Please contact Simon for more information or to discuss introducing a new SPL policy.
[post_title] => Explained: shared parental leave [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => explained_shared_parental_leave [to_ping] => [pinged] => [post_modified] => 2014-11-25 11:40:00 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [22] => WP_Post Object ( [ID] => 4686 [post_author] => 17 [post_date] => 2014-06-27 16:02:00 [post_date_gmt] => 2014-06-27 14:02:00 [post_content] =>The Data Protection Act 1998 is legislation that all schools must be familiar with. It embodies a series of principles about how personal data should be handled by a school. It is ‘policed’ by the information commissioner (ICO) and he has the power to impose fines of up to £500,000.
Questions that every school must address are: “are we data protection compliant?” and “do we have the right policies and procedures to ensure we are data protection compliant?” Robust pragmatic policies are absolutely necessary in ensuring that a school can answer both in the affirmative.
This article explains why policies are important and provides warnings about the consequences of getting data protection wrong. In short, data protection must be taken very seriously.
The function of written policies, backed up with procedures, is to help staff (and governors) be aware of their responsibilities. They should describe the underlying principles and identify who is responsible for what. They can include guidance as to how to and who can access personal data. They should also deal with:
✥ what information should be retained, or destroyed and when
✥ guidance on the use of computers
✥ the handling of paper records
✥ the use of personal devicesA policy needs to be ‘owned’ by the school so there can be disadvantages in just buying one off the shelf. To implement a live document, a school should use a template which covers the main areas described above and then work through these to make sure they are fully understood and deal with issues specific to the school.
Having policies in place, reviewed and approved by governors is also, in itself, evidence that data protection is taken seriously and that good data protection practices are ingrained. The policies and procedures are as critical as health and safety policies and should be regularly reviewed and tested. Best advice is that they should be considered on, at least, a yearly basis by governors to ensure that they are fit for purpose.
If there is a breach of the Data Protection Act and a school has not put in place policies, then it will have acted in direct contravention to guidance from the ICO. Such a contravention will significantly increase the risk of a fine and increase the risk of reputational damage. A lack of clear policies will be a real indication of a lack of clarity about how data protection issues should be handled and how personal data should be treated. Not only is this disrespectful of the data subjects and their rights, it may well mean an increased burden for staff – from clerical staff to senior staff – and this in itself can be extremely detrimental for the wellbeing of a school.
Personal data is information about a living person. The Data Protection Act is based upon eight principles. These require that personal data:
✥ is processed fairly and lawfully
✥ is obtained only for lawful purposes and is not used for incompatible purposes
✥ is accurate and up to date
✥ is adequate, relevant and not excessive
✥ is not kept for longer than is necessary
✥ is processed in accordance with rights of data subjects
✥ is protected by appropriate technical and organisational measures against unauthorised use and against accidental loss
✥ is not transferred outside the European Economic Area unless to a country with proper protection of personal informationPersonal data must be treated with respect – or, put another way, must be dealt with in the same way as you would like information about yourself to be dealt with.
It should be stressed that critical comments about an individual are personal data. A useful rule is: nothing should be recorded which would cause embarrassment if disclosed to the data subject. This is a very basic rule and should be treated as having paramount importance. Information held about an individual belongs to that individual. The fact that disclosure of the information may cause embarrassment is not a recognised exemption under the Act. Destroying information after a subject access request is made is potentially a serious data protection breach. However, if information is destroyed before a request, then this may simply be sensible information management.
Information security is perhaps the most important area for a school. If personal data is lost or there is unauthorised access to it, then this could cause real harm to staff, pupils or parents. This could result in a fine and could cause serious reputational damage. Information security should therefore be treated as seriously as the physical security of the school. Just as a school will review who can visit its premises and for what purposes, it should review who can access information and what security is in place.
Information is often held on computers and there have been a variety of cases where laptops have been stolen from schools or from homes. If there is a failure by the school to ensure encryption or other appropriate security measures are used, then this in itself could be a breach of the Act.
One particular problem is the use of memory sticks. If a school allows the use of unencrypted memory sticks and one is lost, then there really will be no defence. Although encrypted sticks are more expensive, this may mean that they are only used when necessary. If an encrypted memory stick is lost, there will not be a breach of the Act.
It is also advisable to review how paper records are stored. Confidential information must be kept in locked cupboards in order to comply with the Act. Leaving confidential or sensitive information on a desk overnight creates an avoidable security risk.
In order to emphasise the importance of these simple points, it is useful to consider some published cases.
In 2013 the Nursing and Midwifery Council were involved in a fitness to practice investigation against a nurse. It sought to send to the hearing venue three DVDs containing highly sensitive information. But when the packages were opened at the venue there were no DVDs inside. They had been lost and the DVDs were not encrypted. A review of the procedures undertaken recommended that there should be more formal policies and procedures regarding the security of such data, including the encryption of any data stored on removable media. Nonetheless, the ICO imposed a fine of £150,000.
In 2011 an officer of Aberdeen City Council used a secondhand computer for home working. This computer had an automatic file transfer programme installed. This meant that all of her ‘My Documents’ file was automatically uploaded onto the internet – and this included data from her work email and from a USB stick. The material which was uploaded was highly sensitive information about children, their parents and their involvement with social work. The council was fined £100,000. The council’s policies were subsequently strengthened and all council-issued computers are now encrypted.
Cases such as the above are commonplace. Whilst they demonstrate how easy it is to get data protection wrong, with proper procedures and policies in place, providing clarity about where responsibility lies, coupled with proper training, it is also easy to get it right.
In conclusion, there really is only one answer to the question “Are data protection policies worth having?” and that is a resounding “yes”.
Andrew Gallie is an associate at leading education law firm Veale Wasbrough Vizards T: 0117 314 5623
[post_title] => The importance of data protection [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => the_importance_of_data_protection [to_ping] => [pinged] => [post_modified] => 2014-06-27 16:02:00 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [23] => WP_Post Object ( [ID] => 4730 [post_author] => 17 [post_date] => 2014-05-30 12:33:00 [post_date_gmt] => 2014-05-30 10:33:00 [post_content] =>
On 3 April 2014 the Government published the long awaited statutory guidance ‘Keeping Children Safe in Education’ (KCSIE). It applies to all schools and replaces ‘Safeguarding Children & Safer Recruitment in Education’ (SCSRE) with effect from 3 April.
Child protection policy and related policies
All schools should now ensure that their policies are updated to reflect the requirements of KCSIE.
As there is now much emphasis on local requirements, all policies should contain the main points of the local procedures and identify where full local procedures are available. It is also suggested that reference is made in the child protection policy to local guidance on thresholds for referrals and make clear the route for obtaining advice and assistance with borderline cases.
It is also now a requirement that the child protection policy contain missing pupil procedures, since it is recognised that this is a potential indicator of abuse or neglect. The aim is to help to identify any risk of abuse and neglect including sexual exploitation and help prevent the risks of children going missing in the future.
The policy is now also required to differentiate between safeguarding of those children who have suffered, or are at risk of, suffering serious harm and those who are identified as in need of extra support from external agencies, which should lead to inter-agency assessment using locally agreed procedures.
In addition KCSIE states that schools must put in place a code of conduct for staff.
Safer recruitment checks
KCSIE contains much less detail than SCSRE on the recruitment processes to be followed by schools. This seems to be recognition that schools have made great strides in adopting professional recruitment processes since the publication of SCSRE. However, SCSRE still contains some very useful information and should remain a best practice reference point for all schools.
KCSIE has introduced an additional pre-employment check for teaching staff recruited from 3 April 2014. Schools must now check that teachers are not subject to a Prohibition Order issued by the DfE. The check can be undertaken using Employer Access Online. However, it is not currently possible for schools to use this service if they do not already have an account due to work being undertaken on the website. Once this is complete the check will be treated as a requirement for all schools when recruiting teaching staff. It will be best practice for schools to amend their single central register to confirm that this check has been carried out. The other recruitment checks which independent schools are required to undertake remain unchanged.
KCSIE does require schools to have written recruitment and selection policies and procedures in place, which is a timely reminder to schools to review their current documentation to ensure it reflects how they work in practice.
Designated Safeguarding Lead
Each school is required to have a ‘Designated Safeguarding Lead’ (DSL) whose duties will include liaising with the statutory agencies in child protection matters, and providing advice and support to staff in carrying out their safeguarding duties. KCSIE says that the DSL should be a member of the school's leadership team and that their job description should set out the duties required of them. There should always be cover for this role and appointing a deputy is therefore recommended.
KCSIE makes it clear that all staff, and not just the DSL, can make a referral to children's social care if there is a risk of immediate serious harm to a child. Wherever possible, however, a conversation should ideally take place with the DSL before any such referral is made.
Training
The training requirements in respect of safeguarding have changed. While the DSL should undergo child protection training every two years, there is no longer a specific requirement for all other staff members (including the Head) to undergo training every three years. Rather, KCSIE states that staff should undergo child protection training regularly in accordance with the advice and requirements of the Local Safeguarding Children's Board (LSCB).
There is an express requirement that all staff, including temporary staff and volunteers, must be provided with induction training that covers:
* the child protection policy
* the staff code of conduct
* the identity of the DSL
* Part 1 of KCSIEIn addition all existing staff are required to read Part 1 of KCSIE.
Allegations against staff
The statutory guidance, ‘Dealing with allegations of abuse against teachers and other staff’ is now contained at Part 4 of KCSIE. The October 2012 version has been archived and schools should therefore refer to KCSIE in relevant situations.
Volunteers and regulated activity
KCSIE confirms that schools must undertake an enhanced DBS check and Children's Barred List check on all volunteers undertaking regulated activity with children, ie where the volunteering is unsupervised, frequent (once a week, four times or more in a 30-day period) or overnight and provides the opportunity for contact with children. Schools are not permitted to carry out a Barred List check on individuals who are not undertaking regulated activity.
KCSIE also clarifies that if a volunteer is not engaging in regulated activity then a school can undertake a risk assessment, taking into account what is known about the volunteer and what duties they will be doing, to determine whether an enhanced DBS check is desirable.
It remains the case that an unchecked volunteer must not have unsupervised access to children.
When appointing volunteers schools will therefore have to adopt a practice of assessing the nature and frequency of the duties of each volunteer, and whether they will be supervised, rather than applying a blanket policy to all.
Annex D of KCSIE sets out the statutory guidance on regulated activity and supervision which should assist with this process.
Next steps
Schools should draw up an action plan to implement the changes from KCSIE which should include:
* circulating Part 1 to all staff
* reviewing the child protection policy
* implementing a staff code of conduct
* updating the job description of the DSL
* considering the training needs of all staffAuthors Tracey Eldridge-Hinmers and Richard Hewitt are Senior Associates at leading education law firm Veale Wasbrough Vizards
[post_title] => Safety first [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => safety_first_05_14 [to_ping] => [pinged] => [post_modified] => 2014-05-30 12:33:00 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [24] => WP_Post Object ( [ID] => 4919 [post_author] => 17 [post_date] => 2014-03-03 11:45:00 [post_date_gmt] => 2014-03-03 10:45:00 [post_content] =>It was reported in the Times on 20 January that teachers at 130 independent schools have been implicated in sexual abuse allegations. The majority of these allegations relate to historic abuse (in the 1960s-1980s) and with high-profile prosecutions and continued media interest, the 'Jimmy Savile effect' shows no sign of abating.
It can be difficult for schools to manage such claims as they often relate to deceased former personnel and to periods for which records have long since been destroyed. It is not safe to rely on a claimant being out of time to bring a claim as limitation periods are often disapplied in such cases.
When an allegation is made
Initial notification of an allegation is not always made through lawyers. It often follows direct contact by a former pupil or by the police following a report of a crime. Sometimes the former pupil will expressly refer to a claim for compensation, but on other occasions their motives are less clear.
How the school responds to this initial contact can influence whether and how the victim takes the matter forward and whether they then pursue claim for compensation. It must be handled sensitively, but in such a way that it does not prejudice the school's position. Below is a suggested plan of action:
Immediate action
Schools should:
* Ensure that the allegations are properly recorded.
* Brief appropriate members of the school's senior management team, trustees or governing body. Given the confidential and sensitive nature of the allegations, schools may wish to inform only key members of the school's senior management team and governing body and set up a 'task force' to manage the issue.
* Consider whether the allegation relates to a current member of staff and if so, consider the need to take urgent action to suspend them pending further investigation.
* Contact the school's insurers or brokers. It will usually be the public liability or professional indemnity insurers who insured the school at the time of the alleged abuse which will be on risk for the claim. These are not always easy to identify. In addition to cover for a claim, schools may also have separate cover for legal costs or for the costs of professional advice on reputation protection or critical incident communications.
* Prepare for the allegation hitting the press or social media and draft statements for release if required. These should include statements for the media and separate ones for governors, staff and parents. It is easy to set up internet alerts to monitor press interest and blogging.Reporting and recording
These could include reports to:
* The local authority designated officer (LADO). Even where the allegations are historic, such allegations should be dealt with in accordance with the school's current safeguarding policy and where appropriate reported to the LADO.
* The Charity Commission. Charitable schools should consider whether historic abuse allegations should be reported to the commission as a serious incident.
* The police. If the victim has not contacted the police, then there is no obligation on the school to report the allegations, but the school should be aware that the LADO and/or victim may do so.Internal investigations
Before commencing an internal investigation, schools should consider the need to do so and the status of it. Schools are not obliged to accept formal complaints from former pupils but may wish to do so. If a claim is made, then an investigation will be required.
Either way, investigation reports may become discloseable in related civil and/or regulatory proceedings and schools are therefore recommended to seek legal advice before starting an investigation. Lawyers will consider whether it is covered by legal privilege (which could prevent its subsequent disclosure).
Schools should not take steps which could prejudice the investigations of external bodies such as the police and the LADO.
Having considered the nature of the proposed investigation, the school should first check for internal records relating to the alleged victim and perpetrator and ensure these are retained. If they have been disposed of, it is useful to record when this was done.
Dealing with claims
Consider what the victim is looking for and whether this can be achieved without formal proceedings, but bear in mind that schools should not admit liability or say anything that could be construed as such without having obtained the appropriate authority and/or advice.
If a formal letter before action is received, this should be reported without delay to the school's insurers.
Next, schools should consider who is the appropriate defendant, particularly where there has been a change in legal entity or incorporation since the allegation was made as they may simply be able to pass the claim to a different entity.
It may be possible to recover the school's outlay from the perpetrator or their estate, and steps should be taken to preserve the school's position in this respect.
Insurance
Whilst some schools have been able to locate relevant insurers, many cannot. Damages for abuse claims often vary between £50,000-£450,000 and the legal costs of defending such claims and dealing with potential reputational damage are likely to be significant.
It is therefore imperative that adequate insurance records are kept. Employers' liability insurance only became compulsory in 1969, and public liability or professional indemnity cover remains optional. Unless schools can prove that they had insurance in place at the time of the alleged abuse, even if the identity of the insurer is known or suspected, insurers are unlikely to accept responsibility for the claim. Insurance data miners may be able to assist schools with investigations into historic issues.
It is recommended that schools ensure that insurance schedules for each year are retained and that historic insurance records are retained indefinitely.
Tactics
Schools will generally be vicariously liable for the acts (or omissions) of staff, even where staff carry out illegal acts of abuse which were expressly prohibited by the school. Vicarious liability is a principle of strict, no-fault, liability whereby schools are liable to pay compensation and costs for the illegal or tortious actions of staff, even if they were not aware of them.
However, the claimant still has an obligation to prove that their claim should be allowed to continue, that the abuse they complain of took place and that it caused them injury and loss.
If the perpetrator has already been convicted of abuse, then the claimant is likely to be able to establish the abuse complained of, but s/he will still need evidence as to its effects in order to value the claim. This can be arranged without formal court proceedings and in these situations, schools may be best served by entering into settlement negotiations at the earliest opportunity.
Where there is no conviction or the perpetrator is dead, schools will need to consider whether to challenge the claimant's allegations and it is recommended that they seek legal advice.
These claims are tricky as they involve not only a historic claim, but also the need to apply some of the school's current policies.
Tabitha Cave is a partner at leading education law firm Veale Wasbrough Vizards. If you would like more advice or assistance in relation to any of the issues raised in this article please contact Tabitha on 0117 314 5381 or at tcave@vwv.co.uk
[post_title] => Managing allegations [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => managing_allegations [to_ping] => [pinged] => [post_modified] => 2014-03-03 11:45:00 [post_modified_gmt] => 0000-00-00 00:00:00 [post_content_filtered] => [post_parent] => 0 [guid] => [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) ) [post_count] => 25 [current_post] => -1 [in_the_loop] => [post] => WP_Post Object ( [ID] => 18385 [post_author] => 43 [post_date] => 2019-06-10 00:00:13 [post_date_gmt] => 2019-06-09 23:00:13 [post_content] => The Department for Education (DfE) and Department for International Trade (DIT) have launched a new International Education Strategy (IES) outlining plans to increase student numbers and income generated from international education. Building on the broader Export Strategy published in August 2018, the IES aims to consolidate the strengths in the UK’s education offering whilst addressing the challenges believed to prevent it from reaching its full potential, including, of course, Brexit. Across 23 action points, the IES sets out an ambitious vision impacting on the full spectrum of education sub-sectors from early years through to higher education and aiming to increase the annual value of education exports to £35bn by 2030 (in 2016, it was £20bn). At the same time, it is expected that new National Minimum Standards (NMS) for boarding will be issued in 2019, creating a regulatory requirement for schools to have adequate education guardianship arrangements in place and making them subject to regular inspection. The IES places international education firmly back in the spotlight and suggests there is likely to be renewed interest and increased scrutiny on the arrangements made for international students in the UK. We look at the impact this is likely to have on key stakeholders and, in particular, on the interplay between independent schools registered as Tier 4 sponsors and guardianship organisations. What will this mean for schools? Our schools, which are singled out in the IES for providing international benchmarks for safeguarding and choice, constitute an important aspect of the UK’s international education profile. ISC research reported that in 2017 international schools educated around 4.5 million students around the world, a figure projected to double within the next decade, with the popularity of UK curricula delivered in English remaining strong. In 2018, UK independent schools opened more overseas branches than during the previous 20 years and demand for UK schools abroad continues to grow. The IES seeks to support the ambition and growth of the sector through a variety of measures, including the DIT encouraging independent schools to access international opportunities through the use and provision of exports data, connecting providers with investors and working with key sector bodies to produce information guides for schools interested in developing an international presence. Perhaps even more significantly, IES Action 13 states that the DfE and DIT will coordinate efforts across government and key sector bodies to encourage independent schools to have a better understanding of guardianship arrangements and the role of accreditation bodies. Best learning will be gathered from schools who already do this well. Current thinking is that this will result in new NMS in 2019, which will place greater obligations on schools to be proactive in ensuring that guardianship arrangements are acceptable. For those who have been lobbying for the regulation of educational guardianship, these developments represent the culmination of years of work and one of the most welcome changes in the sector for some time. It was concern about the lack of any formal regulation of educational guardianship and the consequent risks this creates for international students at school in the UK that led, back in 1994, a small group of guardianship organisations and independent schools to create the first accreditation body for guardianship – the Association for the Education and Guardianship of International Students (AEGIS). A registered charity, AEGIS now counts 44 guardianship organisations and 72 independent schools as members. Affiliated with the Boarding Schools’ Association since 2018, AEGIS continues to operate its own accreditation framework and accreditation process and to promote best practice in the sector through conferences and training courses. Despite this, the number of international students who received educational guardianship services from an AEGIS-accredited provider remains low. In 2018, there were just over 28,500 non-British students with parents residing overseas. Of those students, only around 5,000 (17.5%) of them had an AEGIS-accredited educational guardian. It is these statistics that help explain why the IES and new NMS are welcome news to anyone concerned by the potential vulnerability of international students and the legal and regulatory risks being taken by so many schools. New NMS for boarding Whilst it is difficult to know exactly what the new NMS will look like, it is easy to identify issues that they will hopefully address. One is the current lack of any requirement for international students to be provided with independent educational guardianship. This is already a condition of AEGIS accreditation and regarded as best practice in order to ensure that students have an educational guardian able to act as their unconflicted advocate, but it is not widespread. As a result, it is still common for schools to allow, or even encourage, members of their own staff to act as educational guardians (and also homestay provider) for students, blurring the important distinction between ‘home’ and ‘school’ and potentially making it impossible for them to feel supported or even able to complain. Another is clarity on the number of children who are permitted to reside in a homestay at any given time. If experiencing authentic family life within the UK is among the key purposes of a successful homestay arrangement, it makes sense that the number of international students within any one setting be limited. Historically, that limit has been set informally at three, probably because the Children Act 1989 imposes a cap on how many children may be privately fostered in one household (known as the ‘usual fostering limit’) at that number such that hosting more may require registration as a children’s home. Despite this, there is a reported tendency for unaccredited educational guardians to place as many students as possible in each homestay and for some schools to be disinterested in, or even entirely unaware of, whether or not this is the case.
UK international schools currently educate around 4.5 million students around the world, a figure projected to double within the next decadeFrom a general welfare perspective this sort of practice is troubling, but it may also be a compliance breach where the school in question is a Tier 4 sponsor and therefore subject to specific Home Office obligations. It is a Tier 4 requirement that any student living in a homestay as part of a private fostering arrangement (i.e. one for 28 consecutive days or more) is not residing in accommodation ‘being operated as a commercial enterprise like a hotel or youth hostel’. Even if it is accepted as unlikely that any sponsored student would do that in practice, it should not be forgotten that sponsoring schools’ welfare responsibilities continue throughout the time students remain in the UK, whether or not it is term-time and the students are actually in their care. With this in mind, now may be the opportune moment for guardianship organisations and schools alike to consider reviewing their practices. Guardianship organisations might investigate accreditation with AEGIS and schools may wish to do the same and/or consider validation by QegUK. Founded in 2016, QegUK differs from, and arguably complements, AEGIS by focusing on improving the practices of education providers (school, colleges, universities). It offers a kite mark to member organisations covering the regulatory aspects of good international student provision but also covers pastoral issues such as how well students are enabled to integrate into their learning community. At a time when Brexit is creating exceptional uncertainty, it is critical that the UK education system and its international offering is as prepared as it can be for life beyond EU membership. The IES provides clear reasons for optimism without forgetting to acknowledge the need to improve the way that international students are supported during their studies here. Hopefully, our regulatory system will now address deficiencies regarding educational guardianship long recognised by self-created accreditation and validation organisations. Ideally it will do so without undermining what makes the UK such an attractive place to live and learn.
Kris Robbetts is a partner at leading education firm VWV. Kris can be contacted by calling 0117 314 5427 or emailing krobbetts@vwv.co.uk [post_title] => International Education Strategy – the impact on independent schools [post_excerpt] => [post_status] => publish [comment_status] => open [ping_status] => closed [post_password] => [post_name] => international-education-strategy-the-impact-on-independent-schools [to_ping] => [pinged] => [post_modified] => 2019-05-31 11:46:02 [post_modified_gmt] => 2019-05-31 10:46:02 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.ie-today.co.uk/dashboard2/?post_type=blog&p=18385 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [comment_count] => 0 [current_comment] => -1 [found_posts] => 25 [max_num_pages] => 0 [max_num_comment_pages] => 0 [is_single] => [is_preview] => [is_page] => [is_archive] => 1 [is_date] => [is_year] => [is_month] => [is_day] => [is_time] => [is_author] => [is_category] => [is_tag] => 1 [is_tax] => [is_search] => [is_feed] => [is_comment_feed] => [is_trackback] => [is_home] => [is_privacy_policy] => [is_404] => [is_embed] => [is_paged] => [is_admin] => [is_attachment] => [is_singular] => [is_robots] => [is_favicon] => [is_posts_page] => [is_post_type_archive] => [query_vars_hash:WP_Query:private] => 28a824765631169a698dc6ce19d832b2 [query_vars_changed:WP_Query:private] => [thumbnails_cached] => [stopwords:WP_Query:private] => [compat_fields:WP_Query:private] => Array ( [0] => query_vars_hash [1] => query_vars_changed ) [compat_methods:WP_Query:private] => Array ( [0] => init_query_flags [1] => parse_tax_query ) )
Naseem Nabi
What can we do?
At VWV, we have supported, and continue to support, schools with strategic initiatives to generate additional income streams and/or with mergers or collaborations to benefit from economies of scale. There will now be a greater imperative on governors to consider such projects and/or accelerate their completion.
Whilst the TPS provides a great benefit for teaching staff and is highly valued as a recruitment and retention tool, many schools may also want to assess the benefit against the increased cost and consider whether there are other options.
Schools may be considering whether it is possible to close TPS to new members of staff, instead offering access to an alternative scheme. Under current TPS rules however, this is not an option.
A school that is accepted to offer the TPS must automatically enrol all teachers at the school. In addition, it is not possible to ring-fence different categories of staff to whom TPS may or may not be offered; if the school participates in the TPS, all teachers of that school have an entitlement to membership.
Closure of the TPS may be the other option for consideration. Although this may be unpalatable to some (indeed it is currently a condition of membership of some heads’ associations that heads are members of TPS), it may be considered as one of the options. Any such decision would involve consultation with staff and, depending on the contract of employment, is likely to constitute a contractual change to terms and conditions of employment. Associations requiring heads to be members of TPS would also require consideration.
Yvonne Spencer
During the 2016 inspection, inspectors concluded that although the standard of education offered to either sex was not qualitatively different, it did limit the pupils’ social development and meant that they were ill-prepared for interaction with the opposite sex when they left school. On that basis they concluded that the practice amounted to discrimination in breach of the Act.
The School issued judicial review proceedings seeking an order that the inspection report be quashed. The High Court disagreed with the inspectors and concluded that both genders received the same educational experience – albeit mutually separated throughout – and there was no detriment to either group. The report was quashed. Ofsted appealed.
In the Court of Appeal, the Court rejected this argument on the basis that the Act prohibits direct discrimination in relation to a ‘person’ – there is no reference to the discrimination of groups or cohorts as a whole. The Court therefore determined that it was required to consider matters from each pupil’s individual perspective. They concluded that both boys and girls were individually subject to a detriment by reason of their segregation (which in this case was extreme) “because it diminishes the quality of education that the girl pupils and the boy pupils would receive but for their respective sex. It is not the mere fact of separation which gives rise to discrimination... but rather it is the impact on the quality of education which the pupils would receive but for their respective sex.”
This is a Court of Appeal decision so is binding authority on all lower Courts considering the equality law implications of pupil segregation.
The DfE’s gender separation Guidance
The new Guidance is the DfE’s response to the Al-Hijrah judgment and provides support to schools in identifying what is expected when it comes to separation by gender.
The Guidance explains circumstances when, in the absence of a relevant lawful exception, the degree and type of separation of pupils based on gender for both curricular and extra-curricular activities, is likely to be deemed to constitute unlawful direct discrimination contrary to the Act.
It is worth pointing out that the Guidance is non-statutory in nature, meaning that it is not mandatory. Provided schools (and it applies to all schools) follow the Act and Al-Hijrah, they are not required to follow it, but doing so will be good evidence of compliance.
John Deakin
What impact will this have on inspections?
If pupils are separated by sex (or by reference to other protected characteristics), school leaders and governors/trustees will be expected to justify to inspectors, parents and the wider community, the reasons for the separation and to demonstrate that it does not expose pupils to a detriment.
If inspectors find evidence that gender separation has – or might have – a material detrimental impact on children of each gender, it may result in a finding that a school has not met one or more of the standards referred to above.
In these circumstances the DfE is likely to serve a notice on the proprietor of the school requiring it to submit an action plan setting out the steps to be taken to meet the standard or standards, and the time by which each step is to be completed. In most cases the DfE will instruct the relevant inspectorate to carry out a progress monitoring inspection of those steps set out in the action plan.
Particular considerations for diamond model schools
Schools registered as co-educational but who operate under a diamond model in which girls and boys are educated separately at one or more key stages, will, if they determine that gender separation is not minimal or does not fall within a lawful exception, need to consider:
- whether their current practices offer the same educational, co-curricular and social opportunities for boys and girls (careful review of pupil and parent feedback on the educational experience at the school will be an important part of these considerations); and if not:
– integration of the genders at all stages of the school to become fully co-educational; or
– change the existing registration to create separate single-sex schools for the separated year groups
We suggest that until more information is made available, this is something that governing bodies and proprietors keep under review.
Conclusion
Given that this is likely to be a focus area on inspection, we recommend that schools undertake and document the suggested review.
To be kept up to date with regulatory compliance, please ask for a demo of My OnStream. My OnStream is a cloud-based compliance-management solution tailored to schools, providing a range of compliance services supported by VWV’s sector-leading lawyers. If you would like to find out more visit 
VWV
We are a full service law firm and will put you at the heart of everything
Our combination of expertise, genuine teamwork and client commitment sets us apart, and that’s why we’re confident that we can deliver the best and most effective legal solutions to help you succeed.
Kris Robbetts, partner at VWV, looks at the impact of the International Education Strategy on independent schools and their key stakeholders
In this article, leading education law firm VWV examines the law and best practice for schools concerning anti-money laundering measures
Naseem Nabi, Partner at VWV, explores strategic considerations ahead of the proposed changes to the Teachers’ Pension Scheme
