We’ve now entered what will no doubt be another challenging school year and there are plenty of legal developments on the horizon that schools and their senior teams need to be aware of with regards to how they could impact their operations, particularly in the employment sphere.

Some developments are a direct result of the pandemic and the problems it is causing, while others link to more long-standing developments that could have a major impact on the sector - from holiday pay to contract disputes.

Here are seven key areas that schools should be aware of going forward.

1. Staff absences and self-certification

The government made changes at the end of last year to the self-certification regime for statutory sick pay.

This means employees can temporarily self-certify sickness for 28 days before needing a fit note from their GP, instead of providing one after seven days.

While the aim is to take some pressure off GPs while the Covid-19 booster programme is in force, this could have an impact on staff absences, possible school closures and vaccination requirements.

Some schools are asking employees to get a fit note after seven days in order to be paid contractual sick pay, if their policy allows for this. 

But there might be practical issues with this, such as GPs not being keen to provide notes prior to 28 days or charging for seven-day notes, which may cause disagreements about who pays for them. There may also be some resistance from unions and employees.

The most straightforward approach would be to allow self-certification for 28 days for both SSP and contractual sick pay purposes. However, we are aware that some employers are concerned that employees might take advantage of this new rule and take the full 28 days off.

2. Remote learning and curriculum

If staff absences force widespread closure of year groups and whole schools, the quality of remote learning will become even more critical and parents will expect more this time because of schools’ gained experience in that type of learning. 

Legal challenges, therefore, regarding reasonable adjustments through remote learning for pupils with SEND will be a particular concern. We are already seeing a number of SEND schools having to close because of staff shortages.

Furthermore, absences relating to self-isolation will continue to put pressure on already resource-stretched schools.

In such cases, you can assume that the employee is “ready and willing to work” and they are prevented from attending work in person due to the need to follow government guidance.

Schools can also explore work they can do from home (such as supporting other pupils remotely who are also self-isolating, marking, planning and preparing lessons).     

3. Term-time-only workers and a key ruling

Setting the impact of the pandemic aside for a second, we are also anticipating changes as a consequence of the case of Harpur Trust vs Brazel.

The case is critical to the way in which term-time-only workers and casual staff are paid and was heard in the Supreme Court last year, with the judgement expected this month.

The two central and closely related issues are: 

1. How should holiday entitlement be calculated for part-year workers; and

2. How should holiday pay be calculated for part-year workers.

In general, paid holiday entitlement for part-time workers should be calculated on a pro-rata basis to that of full-time workers.

Term-time workers may be employed under an annualised hours contract, which provides for an annual holiday entitlement expressed in hours.

However, this approach may now be in doubt following Harpur Trust vs Brazel [2019] EWCA Civ 1402.

This case concerned a term-time-only worker who worked under a permanent contract that provided expressly for their hours to be worked only during term-time.

The court held that part-year workers remain entitled to 5.6 weeks’ paid leave and that this entitlement cannot be pro-rated to reflect the fact that they do not work for a whole year.

The correct amount of holiday pay should be calculated by applying section 224 of the Employment Rights Act 1996 to identify the amount of a week’s pay, and multiplying that figure by 5.6. This is the case even if the amount of holiday pay exceeds 12.07 per cent of the part-year worker’s annual earnings.

The judgment is likely to be released later this month and, depending on the ruling, some schools may need to review how they calculate pay for these staff members.

4. Staff shortages: sponsoring recruits

Recruitment is becoming more challenging, with the education secretary urging retired teachers to make a return to the classroom and schools having to be even more mindful about retention and workforce planning.

Many schools are turning to sponsorship of overseas teachers in order to reduce their resourcing issues.

But if schools are thinking about sponsorship, they will need to obtain a sponsorship licence and/or obtain further certificates of sponsorship if they already hold a licence. This process takes time, which schools should factor into planning.

Schools are increasingly turning to this option as both Brexit and the pandemic are having an impact on recruitment, with high demand for teachers across many subjects.

5. New Employment Bill

One particularly notable development for 2022 is the new Employment Bill, which could have a significant impact on schools. Key measures are likely to include:

• An extension of the right to suitable alternative employment on redundancy to those who are pregnant and who have just returned from maternity leave.
• A right to paid neonatal leave.
• A new right to a week’s unpaid leave for carers.
• A right for those who work variable hours to request a stable contract after 26 weeks.

There is no date for this bill as of yet but it is one to watch closely when it is released.

6. Procurement: fallout from the ESS SIMS contracts saga

The dispute between ESS and schools over the minimum contract periods brought the procurement obligations of schools and academy trusts into sharp focus.

Schools and academy trusts were placed in a difficult position as they cannot simply renew with ESS without complying with the relevant public procurement rules, as well as securing the best value for money.

As academy trusts grow their number of schools and make central decisions over purchasing, it is increasingly likely that procurement regulations will apply to their contract award decisions.  

School leaders need to keep a close eye on any upcoming contract renewals, or the potential need to change a supplier, for all their schools, and have a streamlined procurement process in place to give themselves plenty of time.

7. Spring White Paper: the need for continuing strategy regarding academisation

Predictably the new Department for Education ministerial team has been keeping their policy powder dry, but from the anticipated spring White Paper, we expect to see substantial policy developments around the resilience of the school system through families of schools. 

Schools and trusts should keep their structural strategy under regular review to remain agile in this changing environment, and be ready to take opportunities as school groups continue to grow and evolve rapidly.

Jean Boyle is an employment lawyer with Stone King