1 July 2008
Practical Strategies for a Changing World Conference - 16 September
We are pleased to announce that we are presenting, in association with MTM Consulting, our third Practical Strategies Conference at the Institute of Directors in London on 16th September.
The principal speakers will be:
Sir David John, Trustee of Llandovery College and Chairman of BSI Group, Premier Oil Plc and Balfour Beatty Plc
Neil McIntosh, Chief Executive, CfBT Education Trust
Nigel Richardson, Headmaster of the Perse School and former Chairman of HMC
Chris Whittle, Chief Executive of Nations Academy and former Chief Executive of Edison Schools.
This will be an exciting and informative day, essential for school decision-makers. In addition to the principal speakers, the day will include several practical workshops with topics such as 'Public benefit - what it means for your school' and 'Trading companies - a hidden source of income'.
Please click here for more information and a booking form.
The previous two conferences were over-subscribed so please register now to avoid disappointment.
For further information contact Simon Bevan on 0117 314 5238 or at sbevan@vwl.co.uk.
A warm welcome to Yvonne Spencer
From 18th August, Yvonne Spencer will be joining us from an Essex based firm to become the new Head of the Pastoral team, within the Education Department. Yvonne is a Solicitor Advocate who is well recognised for appearing in the High Court in the case of Shabina Begum, the Muslim schoolgirl who fought for her right to wear religious dress to school.
Her recent publications include articles in: The Education Law Handbook; Legal Action Group – ‘Family and Child Law Update (co-written with Nigel Humphreys)’; ‘Education, Public Law and The Individual’; The Solicitors’ Law Journal and The Law Society Gazette.
This is an exciting time for Veale Wasbrough and we look forward to welcoming Yvonne into our team and introducing her to you.
For further information contact: Simon Bevan on 0117 314 5238 or at sbevan@vwl.co.uk
Risks in the playground
James Porter, a head teacher for over 30 years with an exemplary safety record, was prosecuted under Health & Safety legislation in October 2007 following the death of a three year old pupil who was injured in the school playground. His prosecution was successfully appealed on 19 May 2008 when the Court of Appeal declared the conviction "unsafe".
Kian Williams jumped down four steps at Hillgrove Private School in Bangor, Gwynedd whilst pretending to be Batman. He lost his footing, suffered brain injury, contracted MRSA and died a few weeks later.
Mr Porter was initially prosecuted for breach of Health & Safety legislation: for failing to do all that was reasonable to keep children using these steps safe - in failing to provide adequate supervision of pupils and/or a gate at the steps (which has since been erected). When considering these issues, Mr Porter said that he thought it important to instil in the children a sense of responsibility.
His conviction was quashed on the basis that there was no evidence of a risk to health and safety, other than the risk that a child might go unsupervised down a flight of stairs. He concluded that "the fact that a young child might slip or trip or choose to jump from one height to a lower level is part of the ordinary incidence of everyday life". Lord Justice Moses described it as a "truly terrible tragedy" but found no evidence that Kian was exposed to risk by the conduct of the school.
This decision reminds us of the 2 stage test when considering health and safety issues: first, is there a risk to health and safety arising out of the conduct of your undertaking and second, if so, what are reasonably practicable measures to ensure safety?
For further information contact Tabitha Cave on 0117 314 5381 or at tcave@vwl.co.uk
The balance between risk and personal autonomy
In the August 2007 edition of the Schools law brief, we reported on the case of Poppleton v Trustees of Portsmouth Youth Activities Committee. Gary Poppleton (an adult) went "bouldering" (low level simulated rock climbing without ropes) at an indoor climbing centre in Portsmouth. The climbing centre provided suitable premises and equipment and left it to those using them to do so sensibly and without supervision. When signing in they did not provide any instruction or explanation of risks and did not ask users about experience. Climbing Wall Rules were not prominently displayed.
The rules provided that there should be no jumping from the walls but Mr Poppleton attempted to do so (copying another) and in so doing, he lost his footing and fell onto his head suffering catastrophic injuries which have rendered him tetraplegic.
At first instance the trial Judge found that "there was absolutely no doubt that there were a number of shortcomings in the procedures adopted at the centre which fell below industry good practice at the time". Notwithstanding the fact that Mr Poppleton accepted that his attempt to jump was obviously dangerous and that it was his deliberate choice to take that risk, the Judge then found the centre 25% to blame for the accident.
The Court of Appeal have now quashed the finding of negligence against the centre. Lord Justice May stated: "There being inherent and obvious risks in the activity which Mr Poppleton was voluntarily undertaking, the law did not…require the appellants to prevent him from undertaking it, nor to train him or supervise him while he did it, or see that others did so."
While the decision relates to decisions made by adults and may not directly relate to activities in schools, it is another example of the Courts imposing an obligation on individuals to take personal responsibility.
Our Health & Safety team can advise you about Health & Safety policy and procedures, risk assessments, critical incidents and represent you should you face investigation/prosecution.
For further information contact Tabitha Cave on 0117 314 5381 or at tcave@vwl.co.uk
Property update
The recent case of Newnham College, Cambridge University v Revenue & Customs Commissioners [2008] UKHL 23 highlights the need to take specialist advice and to ensure that the proper documents are in place.
The case concerned the construction of a new library by Newnham College at a cost of approximately £7.5m. Newnham College Library Company Ltd ("Newco") was then incorporated. Newco took a lease of the library from Newnham College for a term of 11 years at an annual rent of £165,000. Newnham College waived the exemption to VAT in respect of the property, in order to recover VAT on the construction costs. Therefore, Newco was charged VAT on the rent and Newnham College looked to claim the VAT on the construction costs back from HMRC.
Customs objected to the arrangement and the case went before the House of Lords. Customs claimed that in reality, Newnham College was "in occupation" of the library and that the arrangement therefore fell foul of the anti-avoidance provisions of schedule 10 to the Value Added Tax Act 1994.
The Lords disagreed by a 3:2 majority. The lease between Newnham College and Newco granted exclusive possession to Newco. "Occupation" has a defined legal meaning and mere physical possession did not amount to the same thing.
In this case, there were a number of additional documents to supplement the lease. Further, Customs did not argue that the scheme was a sham as they wanted to test the anti-avoidance provisions. The Law Lords noted that the outcome may have been different if Customs had not taken this position. As the anti-avoidance provisions did not achieve Customs' intended outcome in this case, they are unlikely to take a similar approach in another case.
This case illustrates the technicality of the law in this area and the need to take professional advice at an early stage. In this case, the legal documents (the lease and supplemental agreements) put in place by the school were sufficient to ensure the efficacy of the scheme.
For further information contact Tristan Foot on 0117 314 5628 or at tfoot@vwl.co.uk
Licensing an overseas school
Ther It is becoming increasingly popular for UK schools to enter into arrangements whereby an overseas school uses the UK school's name in return for royalties. There are many potential benefits, including:
- Revenue
- Cultural and sporting links
- Exchanges of pupils and staff
- Development of education in underprivileged regions
- Enhancement of the UK School's reputation.
There are also risks:
- Drain on management time
- A scandal in the overseas school that damages the reputation of the specific UK school
- A divergence in ethos or academic performance that damages the reputation of the UK school.
In order to minimise risks and maximise benefits it is essential to focus on the important issues:
- Do all the parties have a clear understanding of the aims of the project from the outset?
- Do you know and trust the people behind the licensee school?
- Do they share the UK school's ethos?
- Do they have the resources and expertise to make the project a success?
- What measures do you need to take to protect the UK school's name? This will involve seeking specialist advice on trade mark registration.
- What needs to go into the detailed written agreement between the parties? This needs to cover a wide range of points including hiring and firing arrangements for the licensee school's Head and management team, licence fees, insurance, termination arrangements and many other technical and sensitive matters.
Doug Locke, a partner in our Commercial team, has extensive experience of advising independent schools on all these issues and would be happy to discuss your queries or ideas with you.
For further information contact Doug Locke on 0117 314 5602 or at dlocke@vwl.co.uk.
Employment round up
Ill health in the workplace
The NUT has recently published guidance regarding mental ill health in the workplace. The guidance notes that mental ill health is the second largest cause of sickness absence in the UK.
Stress arising from a variety of factors including workload, pupil behaviour and conflict with fellow staff members may lead to work related health problems in schools.
The NUT guidance is designed to assist Heads to provide a supportive and healthy working environment, reducing the risks and incidents of work related stress and ill health. The guidance may be accessed if you click here.
For further information contact Richard Hewitt on 0117 314 5320 or at rhewitt@vwl.co.uk.
Flexible working
The Government has accepted the recommendation of a report published by BERR regarding a proposed extension to flexible working. The report recommends the extension of the right to request flexible working to those with parental responsibility for children up to the age of 16. The right is currently limited to parents of children under six years old (or 18 years old if the child is disabled) and to carers of adults.
For further information contact Rachel Ackroyd on 0117 314 5641 or at rackroyd@vwl.co.uk.
Time off for training
The Government has launched consultation on how a proposed new right to request time off work for training will work in practice. The new right was unveiled in the 2008/9 draft legislative programme.
The right would apply to all employees who have been employed for not less than 26 weeks and will operate in a similar way to the right to request flexible working. Accordingly, employers will have to consider requests fairly but will not be required to grant the request provided they can justify the refusal on defined business grounds. A consultation on the time off for training proposal will now run until September. Ministers hope to have the scheme in place within the next two years.
For independent schools who currently encourage participation in training, the new scheme may simply require the review of existing practice. We will of course keep you posted with any further developments and details of when the proposal will come into effect.
For further information contact Kiki Weeden on 0117 314 5309 or at kweeden@vwl.co.uk.
Working Time Regulations 1998 - Compensation for a breach?
In the recent case of Miles v Linkage Community Trust Limited UKEAT/0618/07 the EAT considered a boarding school worker's right to compensation under the Working Time Regulations 1998.
Mr Miles brought a claim for breach of the Regulations. Mr Miles had been employed by Linkage on a shift system which included time spent on 'sleep ins'. In breach of the Regulations, he had been required to work for long periods of time and was not always given a break of at least 11 hours between shifts.
Linkage did not dispute that the sleep in time constituted working time and consequently there had been a breach of the Regulations. This left only the question of the appropriate amount of compensation to be considered by the Tribunal.
On appeal, the EAT upheld the Tribunal's decision that Mr Miles was not entitled to any compensation as he had no pecuniary loss arising from the breach. There was no scope in the Regulations to award compensation for injury to feelings and there was no culpable default on the part of Mr Miles' employer.
This decision is a reminder that the compensation which can be awarded under the Regulations is not designed to be punitive, and that it is open to the Tribunal to award nothing, even when there has been a serious and extended breach of the Regulations, as in this case.
For further information contact Karl Deakin on 0117 314 5443 or at kdeakin@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.
