Key employment cases that will affect the education sector in 2021

We have identified three cases which will have a big impact on employment law and education HR policies and practices over the next 12/18 months. 

These cover: 

• Part time worker rights
• Holiday entitlement and pay
• Collective bargaining

If you have a sense of déjà vu, it's because some of these cases appeared on our 2020 list. The pandemic appears to have slowed everything down and it's taking longer for appeals to be heard and for decisions to be handed down. 

Holiday entitlement of term time and other part year workers

In Brazel v The Harpur Trust, the Court of Appeal decided that a teacher engaged on a term time only contract was entitled to 5.6 weeks holiday per year, even though she did not work for the whole year. This was the minimum requirement and it couldn't be pro-rated to reflect the number of weeks she actually worked. Nor, could the employer apply the 12.07% 'formula' for working out her holiday entitlement.

Our blog explaining the decision is available here.

The employers have appealed to the Supreme Court and the hearing will take place on 9 November 2021.

Why this matters

Many schools and colleges engage individuals on term-time or other part year contracts and have pro-rated their holiday entitlement to reflect the number of weeks actually worked and have therefore, as the law currently stands, underpaid staff.

Holiday pay - are the 'rules' which limit a series of deductions correct?

In 2019, the NI Court of Appeal in Chief Constable of the Police Service of NI and others v Agnew held that the EAT's analysis of what amounts to a series of unlawful deductions in Bear Scotland was incorrect and had resulted in 'arbitrary and unfair' results.  It said that a series is not broken by lawful payments, or by a gap in payments of three months or more. It also stated that annual leave is not taken in a particular sequence and the different types of leave (Directive, Working Time Regulation and additional contractual holiday) are indistinguishable from each other.

This meant that over 3,300 police officers and staff could recover around £40 million in underpaid holiday. Our blog explaining this case is available here.

Decisions of the NI Court of Appeal aren't binding in England, Wales or Scotland. However, the employers have appealed to the UK Supreme Court and the hearing will take place on 23–24 June 2021. It's decision will be binding on all UK employers.

Why this matters

Most schools and colleges have been able to rely on the EAT's judgment in Bear Scotland to limit their holiday pay liabilities to a worker's current holiday year.

If the Supreme Court agrees with the NI Court of Appeal, workers will be able to recover underpayments going back up to two years in England, Wales and Scotland.

Collective bargaining - when can organisations negotiate directly with staff?

In Kostal UK Ltd v Dunkley and Others the Court of Appeal held that trade unions with collective bargaining rights cannot prevent employers approaching staff directly to try to agree temporary changes to their terms of employment where negotiations have broken down.

Our blog explains the decision here. 

The Supreme Court will hear the union's appeal on 18 May 2021. 

Why this matters

Prior to this decision, some unions operated as though they had a veto and it was very difficult for schools and colleges to change even minor terms and conditions of employment without the union's agreement. Many organisations erred on the side of caution and backed down because, if they made a mistake, they could be liable to pay huge penalties. 

... a note about the impact of Brexit on employment law

The transition period ended on 31 December 2021. The government reached a trade deal with the EU under which which it agreed that the UK will not lower the protections UK workers enjoyed prior to 1 January 2021 if this would affect trade and investment between the parties. The UK and EU also agreed to strive to increase worker rights and protections. This means that the UK government cannot dismantle existing employment rights without consequences.

Our Coronavirus updates

We're working hard to keep you up to date with legal developments around Coronavirus. We've set up a portal which includes lots of helpful articles and advice to help you.

If you have a query, that we haven't answered, please contact us.