Education Law Speed Read – 06/11/17

Drive for flexible hours in teaching

Last week, the first Flexible Working in Schools Summit was held as part of the government’s drive to increase support for flexible working within the teaching profession.

At the summit the Education Secretary, Justine Greening announced new plans to increase and promote flexible working across the profession. The Department for Education has confirmed that these plans include:

• a pilot programme to look at how schools are already bolstering the careers of part-time teachers, so recruiting best practice can be shared;
• a pilot to strengthen the Women Leading in Education coaching offer, so women can continue to get the professional development support they need; and
• updating existing guidance on flexible working, to help make it easier for schools to know what works.

Ms Greening stated that as constraints on flexible working disproportionally affected women, flexible working in schools could help close the gender pay gap which currently stands at 4.8 per cent for secondary school staff and 1.9 per cent for primary school and nursery staff.

The most recent School Workforce Census showed that 76.8% of teachers worked full-time. However, the figures demonstrated that there had been a small increase in those teachers working part-time since 2010. Primary school teachers were more likely to work part time than secondary school teachers.

In Jet2 Limited v Denby the Employment Appeal Tribunal considered the extent of statutory protection available due to membership of a trade union and held that the concept of “membership” must be construed broadly and include activities incidental to membership.

Facts

Mr Denby was a pilot who started working for Jet2 Limited (Jet2) in 2005, but left in 2011 to work for Air Emirates.

In 2014, Mr Denby applied for a job with Jet2 again but was rejected because of his past advocacy for BALPA (the pilot’s trade union of which he was a member).

In 2015, Mr Denby reapplied for a job with Jet2 but his application was again unsuccessful.

Mr Denby was not a member of BALPA at the time of his application to be re-employed. However, when Mr Denby realised his application had been unsuccessful for a second time, he asked Jet2 whether this was to do with his previous advocacy for BALPA as this had caused friction with Jet2 during his first period of employment.

When Mr Denby expressed his intention to bring legal proceedings, Jet2 stated that the reason that he was not re-employed was because he had been negative towards their business. They asserted that on receiving his offer to work for Emirates, Mr Denby had spoken about his superior remuneration package to colleagues which was unhelpful to their attempts to retain their pilots.

Unsatisfied with Jet2’s explanation, Mr Denby brought legal proceedings under section 137(1)(a) of Trade Union and Labour Relations (Consolidation) Act 1992 arguing that he was refused employment because of his trade union membership.

Employment Tribunal

The Employment Tribunal found that the sole reason for refusing to employ Mr Denby was because of his activities with BALPA, which were related to his trade union membership and therefore unfair. Jet2 appealed because he had not been a member of BALPA at the time his application was rejected.

Employment Appeal Tribunal (EAT)

The Employment Appeal Tribunal considered the extent of statutory protection available due to trade union membership and held that the concept of trade union “membership” must be construed broadly and extend to trade union activities that were incidental to membership. As a result, Mr Denby was protected because of his past advocacy for the trade union and it was irrelevant that Mr Denby was no longer a member of BALPA at the time his application was rejected.

If you have any queries on the above and how it will affect you, please do not hesitate to contact a member of our education team.