School staffing and the risks of the revolving door

What are the legal risks of high staff turnover and reliance on agency staff in schools?

School employers have reported a higher level of staff turnover in recent years. Coupled with this, high levels of staff absence, particularly since the start of the Covid pandemic are an ongoing concern. This has led many schools to rely on an increased number of transitory staff, including agency supply staff. In this article, we consider the employment law considerations for school employers facing these staffing challenges.

This article focuses on employment law issues, but in doing so it is important not to lose sight of the disruption caused to the quality of education by high staff turnover.

Crisis – what crisis?

Many schools and trusts were facing a staffing crisis in certain subjects and at certain management levels in the years before the Covid pandemic. The drivers for high turnover of teaching staff are many and varied. A House of Commons Library Briefing Paper from November 2021 Teacher recruitment and retention in England provides a useful overview of some of the longer-term issues impacting on teacher recruitment and retention. Unsustainable workload, government policy and a lack of support from leadership top the list of reasons given by those leaving the profession. Unsurprisingly, teaching staff mobility between schools is more likely where staff are younger, on fixed term contracts, and are not in leadership positions. Schools in deprived areas are more likely to lose staff to other schools.

The Covid pandemic may initially have put a damper on staff mobility, but it seems now that some Covid-related factors, such as the so-called “Great Resignation” and higher levels of long-term absence are now putting further pressure on school staffing.

Supporting your stalwarts

Good induction, management, on-going support and appraisal are key to establishing and developing a happy and high-performing staff team. This can be a real challenge for established staff and leaders where colleagues are new and/or transitory. And this in turn increases the risks of employment law claims.

It can be easy to overlook the impact, particularly on your long-serving senior and middle managers of an ever-changing and piecemeal staff team. These demands can lead to complex grievances, conflict between staff, work-related stress and long-term absences. Pro-active support for these lynch-pins in your team is vital to reduce the risk of them burning out, moving on, and/or raising formal grievances and claims. Staff with two years’ service could resign and bring a constructive unfair dismissal claim if they consider that the demands upon them were so unreasonable that they were in breach of contract.

Legal risks from staff with less than two years’ service

It is a popular myth that staff who do not have two years' service cannot bring employment tribunal claims.  Schools with high staff turnover should be aware that there are a number of claims which can be brought before that point.

Unfair dismissal claims based on "blowing the whistle", raising health and safety issues, trade union membership, or statutory rights such as exercising the right to be accompanied to meetings can all be brought without two years’ service.

The usual cap on compensation for unfair dismissal claims of one year's gross salary does not apply when an employee is found to have been dismissed for raising health and safety issues or for whistleblowing.

Claims can also be brought before two years’ service in relation to:

- statutory rest breaks, working hours and holidays;

- unfavourable treatment because of fixed-term employee status;

- unfavourable treatment because of part-time worker status; and

- other statutory rights such as family-related and flexible working request rights.

Discrimination claims based on a protected characteristic such as sex, age, race, religion, sexual orientation or disability can be brought by employees, workers, agency workers, job applicants and former staff, regardless of length of service. Schools should be alert to the fact that compensation awards for such a claim are not capped and can include injury to feelings awards.

Can you be sure an employee has less than two years' service?

It is not always obvious when an employee has accrued two years' service. The general rule is that a break in employment of at least "a week ending with a Saturday" will break continuity of service. However, if there is a "temporary cessation of work" (for example where a teacher is not employed over the Summer holiday) continuity of service is very unlikely to be broken.

It is also important to consider the impact of the Redundancy Payments (Continuity of Employment in Local Government, etc.) (Modification) Order 1999 which means that staff who have moved from a local authority school or another academy trust will bring with them their length of service for the purpose of calculating redundancy pay.

The risks of using fixed-term contracts

Many schools routinely employ new recruits, especially NQTs, on fixed-term contracts in the first instance. Where turnover is high, this can mean managing a significant number of fixed-term contracts.

Support and appraisal of staff on fixed-term / probationary contracts is a crucial tool in managing performance and making an informed and reasonable decision about whether to terminate or renew the contract. It is not uncommon for the demands of this process to be overtaken with the day-to-day hecticness of school life and for the end of the fixed-term to come around with no paper-trail of performance management to support a decision to terminate. A lack of supporting evidence for termination on capability, performance or conduct grounds will increase the risk of claims relating to ending the contract.

Schools should be alert to the termination provisions in their fixed-term contracts and ensure that notice is properly given in line with the contract. Some fixed-term contracts can be poorly drafted and do not include a mechanism for early termination. Schools who terminate before the end date could then find they are facing claims for unpaid wages to the end of the contractual term.

If the written fixed-term contract is not renewed but employment continues, it is likely that the contract will be found to have become permanent. Schools should ensure they have a good administrative system which ensures that fixed-term contracts are reviewed in good time before notice must be given and that new contracts are issued where relevant.

Employers must have a fair reason to terminate employment, and this includes fixed-term contracts. The reason might be redundancy where there is a decreased need for employees to carry out a particular kind of work, or “some other substantial reason” such as the return of the substantive post-holder or the end of a specific project. Staff who bring automatic unfair dismissal claims will argue that the reason for their dismissal was an unlawful reason. It can be difficult for an employer to defend such a claim where the reason for the dismissal is unclear or undocumented.

Fixed-term employees have protections under the Fixed Term Employee Regulations. A claim could arise, for example, where an employee has been selected for redundancy on the basis of their fixed-term status (for example where permanent staff were not included in the redundancy pool).

Legal obligations of schools hiring agency supply staff

High staff absence rates over the last few months, along with longer-term recruitment and retention issues, have also led many schools to rely more heavily on agency staff. Although these staff are not direct employees of the school, local authority or academy trust, there are key obligations on the “hirer” in these arrangements. Understanding your obligations under the Agency Workers Regulations from the outset can help to limit claims arising. 

The two key rights of agency workers which schools and trusts should be aware of are:

- The right to the same pay and basic working conditions as equivalent directly employed staff after a twelve-week qualifying period; and

- Access to collective facilities and to information about employment vacancies from day one.

Liability for a failure to provide the same pay and conditions as a permanent member of staff after twelve weeks falls on both the agency and the hirer to the extent that they are responsible.

Schools and trusts should ensure that they provide information to the agency about the pay and conditions of comparator staff so that the relevant terms and conditions apply from week thirteen.

In addition, there are statutory rules about responding to a formal request from the agency worker for information relating to an alleged breach of agency worker rights. Agency workers can also claim that the hirer has subjected them to a detriment for some reason connected to their agency worker rights. For example, where a decision to end the assignment is alleged to be because the agency worker asserted their rights under the Agency Worker Regulations.

When does an agency worker reach 12 weeks?

To complete the qualifying period, the agency worker must work in the same role with the same hirer for twelve continuous calendar weeks. The twelve-week period includes any weeks where the worker has carried out work for the hirer. It will not include weeks where they carry out no work for the hirer. Breaks in service of less than six weeks will not break continuity. The clock will also be paused where the agency worker is on sickness absence for a period of up to 28 weeks. If a tribunal determines that an assignment has been deliberately structured to avoid the twelve-week right, an additional award of up to £5,000 can be made.

Importantly, where the hirer is an academy trust, the twelve-week period could include weeks where the agency worker was deployed in different schools across the trust. Central monitoring of agency worker deployment will therefore be required to ensure compliance with the Agency Workers Regulations.

Proactive management will reduce the risks

School employers can reduce the risk of grievances and claims by ensuring that managers are well trained, supported by the central team, and broadly understand the rights of staff working under different kinds of contracts. Strong proactive management and administration will enable school employers to plan ahead, enable the sharing of necessary information, and act in a timely fashion in line with the contract in question.