Schools Law Brief

16 May 2008

Children and Privacy

Many children of "celebrity parents" attend independent schools and can sometimes suffer intrusive press attention. This is in spite of the Press Complaints Commission Editors' Code of Practice which states that:

"Editors must not use the fame, notoriety or position of the parent or guardian as the sole justification for publishing details of a child's private life."

Under Article 8 of the European Convention on Human Rights an individual has the right to respect for his private life although this must be balanced against other factors including the right of expression.

The Court of Appeal has considered the definition of "private life" in the case of Murray v Express Newspapers Plc (CA Civ Div) May 07 2008. Dr and Mrs Murray (who is better known as J.K. Rowling) brought a case against a photographic agency on behalf of their 19 month old son David. They objected to the publication of photographs taken with a long-range camera whilst the family were out walking and then sitting in a café. The claim was struck out by a High Court judge on the grounds that there was no arguable case for privacy in these circumstances, based on previous case law. The Court of Appeal, however, ruled that the claim can go ahead.

The Court confirmed that a person does not generally have a right to prevent photographs being taken and does not have a right to any images of themselves. However, the Court felt that even where photographs were taken in a public place and were not in themselves embarrassing or humiliating, it was at least arguable that a child could reasonably expect that the press would not target him and publish photographs of him simply because of his famous parent.

Interestingly the Court ruled that this applied to the children of "ordinary parents" as well as celebrity parents. The success of any claim would depend on the facts of the particular case but the Court found it significant that the photographs were taken:

deliberately and secretly;

for the purpose of publication for profit; and

in the knowledge that the parents would have objected to them.

It was also significant that the parents had never courted publicity for their children, for example by taking them to book launches and had always refused to provide photographs for publication.

The court also considered the Data Protection Act in this context. The Information Commissioner has previously advised that the taking (and storing) of photographs for personal purposes is exempt from the Act. So that, for example, normal photographs of school events can be taken for the family album with no restrictions other than the demands of good manners. However, in this particular case, if the court that eventually hears the full claim rules that the child's right to privacy has been breached then the "processing" of the material will be unfair and contrary to the Data Protection principles.

This case raises a number of interesting issues which may be considered at the full trial of the claim (unless it is settled beforehand). What about photographs on Facebook? What happens in the case of existing informal snaps when a school friend (or their parent) becomes famous?

In the meantime, schools concerned about privacy for their pupils should discuss the issues with parents and reach agreement on appropriate security measures. The subject of photography within the school generally is dealt with in the Veale Wasbrough template policy "Policy on taking, using and storing images of children."

For further information contact Christine Betts on 0117 314 5279 or at cbetts@vwl.co.uk.

Most contracts between parents and independent schools provide that there will be no refund or remission of fees if a pupil is absent for an extended period, for example through illness. However, some schools operate schemes where parents pay an additional charge which entitles them to a refund of an appropriate portion of fees in such circumstances.

The VAT implications of such schemes were examined by the High Court in the case of Birkdale School Sheffield v Revenue and Customs Commissioners [2008]EWHC 409 (Ch).

The Commissioners, supported by the VAT tribunal, had taken the view that the scheme was not exempt from VAT because it could not properly be regarded as ancillary to the principal service of education. They argued that the contract for the supply of education was governed by a set of terms and conditions which were entirely separate from the terms and conditions of the scheme.

The judge ruled however, that the scheme conditions varied the terms of the contract for provision of educational services (the parent contract) and were so closely linked to the parent contract that there was, in effect, a single indivisible contract for the supply of educational services. The VAT exemption therefore applied.

For further information contact Richard Pincher on 0117 314 5449 or at rpincher@vwl.co.uk.

Health and Safety reaches a new level

The Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April 2008. Media debate about the legislation has centred largely on organisations such as Network Rail. However, schools are affected by the Act and should see it as an opportunity to think again about how risks are managed. The Act does not introduce any new regulatory requirements, but schools must ensure that they comply with current health and safety legislation.

The Act introduces a new offence which applies when a gross failure in the way an organisation's activities were managed or organised results in a person's death. For schools, "activities" will include not only day to day issues involving the provision of education, but also school trips and educational visits.

It is only if an organisation's conduct falls far below what could reasonably have been expected and a substantial part of the failure was at a senior level, that the organisation will be guilty of an offence. However, it is likely that a fatal incident in a school will give rise to an investigation under the Act. The actions of Governing Bodies and Heads or Heads of Department who deal with the strategic and operational management of health and safety issues will be open to scrutiny.

An organisation found guilty of the offence will be liable to an unlimited fine. Courts can also impose a publicity order requiring the organisation to publicise details of its conviction and fine (with the risk of significant adverse publicity and damage to reputation) and may also require an organisation to take steps to address the failures behind the death by the issue of a remedial order. Punishment should reflect the gravity of the offence. The Sentencing Advisory Panel expect that a fine will fall within a range of 2.5% to 10% of average annual turnover. Further sentencing guidelines are expected in the autumn.

Senior managers and other individuals cannot be prosecuted under this Act although individuals can be prosecuted separately for manslaughter and health and safety offences.

Schools should ensure that:

· comprehensive policies and procedures are in place, which clearly identify roles and responsibilities for health and safety. In particular, schools should follow the guidance on educational visits published by the Department for Children, Schools and Families on its web site;

appropriate risk assessments are maintained and reviewed;

written records are kept of meetings where health and safety is considered;

critical incident policies are in place; and

appropriate training is provided to relevant members of staff.

Our health and safety team can advise you on compliance with the Act.

For further information contact: Tabitha Cave on 0117 314 5381 or at tcave@vwl.co.uk.

Employment Round Up

Part-time employees and variation of hours

Many schools include a provision in their part-time teaching contracts enabling them to vary the number of hours a part-timer may be required to work on a termly/yearly basis. Such provision allows for flexibility where demand for optional subjects varies and the school wishes to adapt its timetable to meet the changes. However, schools need to consider the effect of the statutory protection afforded to part-time employees.

The Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 include the right for a part-time employee not to be treated less favourably than a comparable full-time employee as regards the terms of his or her contract. The regulations state that this protection only applies where the less favourable treatment cannot be justified on objective grounds.

The inclusion of a variation of hours clause amounts to less favourable treatment as the same term is generally not included in a full timer's contract. This may potentially be justified. An objective balance must be struck between the discriminatory effects of the provision and the reasonable needs of the school.

Traditionally many contracts included express provision for a variation of up to 20% in a part-timer's hours per annum. In the recent case of Sharma and others v Manchester City Council UKEAT/0561/07 the Employment Tribunal indicated that a variation provision in a part-time contract guaranteeing only a third of hours worked in the previous year was not capable of justification. In fact, it seems likely that any Employment Tribunal would consider a variation over 10% not to be a "proportionate means of achieving a legitimate end" and therefore unjustifiable. This is because the impact of such a change would be likely to have a much greater detrimental impact on the individual teacher than any benefit to the school.

There are a number of issues for schools to consider in such circumstances and there should always be consultation with the employee before a school seeks to rely on an express variation clause.

For further information contact Simon Bevan on 0117 314 5238 or at sbevan@vwl.co.uk.

Sexual Harassment by third parties

Although the publicity surrounding the introduction of the Xes Discrimination Act 1975 (Amendment) Regulations 2008 has focused mainly on pubs and clubs, these regulations could affect schools. The regulations make an employer liable in certain circumstances for xesual harassment of an employee by a third party ie. someone who is not the employer or another employee. However, the employer is only liable where:

A third party subjects the employee to harassment in the course of his or her employment;

The employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so; and

The employer knows that the employee has been subject to harassment in the course of his or her employment on at least two other occasions by a third party.

All schools will need to bear the regulations in mind when dealing with any concerns or complaints raised by staff regarding conduct of third parties. Third parties may include, for example, on-site contractors, parents of students or, indeed, students themselves. If a member of staff raises a concern the school should investigate the matter and take any appropriate action to protect the member of staff.

For further information contact Rachel Ackroyd on 0117 314 5641 or at rackroyd@vwl.co.uk.

Expired disciplinary warnings

Is a school able to take into account an expired warning on an employee's personnel file when considering whether to dismiss?

The EAT has recently confirmed that an expired warning may in some circumstances be taken into account provided it is not the principal reason for the dismissal. In Airbus v Webb [2008] EWCA Civ 49 the employee concerned had been part of a group of employees caught watching television when they should have been working. This was gross misconduct under Airbus's procedures. The other employees were given a warning. Webb, who had received a warning over a year before for the same misconduct, was dismissed. Importantly in Airbus it was found that Webb's misconduct on its own was sufficient to dismiss him.

It will not normally be fair to take into account expired warnings when reaching a disciplinary decision. However, expired warnings can be taken into account when considering whether mitigating circumstances might otherwise mean that a decision to dismiss is downgraded to a warning. In Mr Webb's situation, having committed the same offence some time ago previously, the employer was not minded to give him another chance.

These rules may be applied differently where the disciplinary offence has safeguarding implications. Records of any incidents affecting the safety and welfare of children should be kept permanently and considered again if a new incident arises.

For further information contact Karl Deakin on 0117 314 5443 or at kdeakin@vwl.co.uk.

Employment Status

There is often a question mark over the employment status of casual teachers and staff; for example visiting music teachers or sports coaches.

The Court of Appeal has recently considered the position where an individual has claimed to be self-employed then subsequently claimed to be an employee and sought to bring a claim for unfair dismissal.

In Enfield Technical Services Limited v Payne and BF Components Limited; Grace v BF Components [2008] EWCA Civ 393 the individual had been offered employment by Enfield Technical Services Limited but had then subsequently asked to be self-employed. The Inland Revenue initially treated the individual as self-employed. The individual subsequently claimed unfair dismissal, despite previously having regarded himself as self-employed.

The Court of Appeal decided that in these circumstances the individual would not necessarily be deprived of his rights as an employee and accordingly may bring an unfair dismissal claim. It seems in this case the Court of Appeal was influenced by the conduct of the employee; he had acted in good faith and had not misrepresented the facts regarding his status to the Revenue.

For further information contact Kiki Weeden on 0117 314 5641 or at kweeden@vwl.co.uk.

This publication is for guidance only. Reliance should not be placed upon it and nor should action be taken, without obtaining advice in respect of the specific circumstances applicable. We will be pleased to provide such advice or assistance.