Education Law Speed Read – 08/05/18

Professional clerks

This week sees a leading advocate for the National Leaders of Governance (NGA) warn that a number of schools across the country could be breaching the DfE Governance Handbook by failing to engage a professional clerk to advise their governors.

What is a “professional clerk”?

The professional clerk is the “constitutional conscience” of the governing body and should advise the governing body on matters of procedure, law and governance matters. Due to the need for independence when advising the governors, this person should be a third party and not otherwise employed by the school. The school should ensure that the person has sufficient training and knowledge to enable them to carry out the role. This will usually be a knowledge of the governors’ legal requirements and the procedural needs of their meetings.

Julia Millard from the National Leaders of Governance has noted that a number of schools are using the head teacher’s PA to perform the role of clerk and to take minutes of their meetings. This is likely to be contrary to the requirement for the clerk to be independent.

What does this mean?

Failing to have a professional clerk, whilst it carries little penalty in itself, can result in much wider governance issues that can cause problems for schools. It can also lead to bad practice such as head teacher’s reports being given orally rather than in writing. Clerks would be expected to know that it is not good practice to provide oral reports to governors rather than submitting a written report as there is less opportunity for scrutiny and oversight on the part of the governors.

The government has stepped up its recognition and requirement for professional clerks in recent times, creating a recognised qualification for professional clerks. Whilst there is no requirement for clerks to have such a qualification, it is good evidence that the school is complying with the governance handbook should a concern be raised.

It is important that schools have suitable clerks in place to ensure that the governors are adequately advised on their requirements. This will ensure that the school has a level of defence should any allegation of governance issues be raised.

DHL Supply Chain Limited v Mr S Fazackerley

In DHL Supply Chain Limited v Mr S Fazackerley, the Employment Appeal Tribunal found that it was not reasonably practicable for a Claimant to present his claim in time, where he had relied on incorrect advice from ACAS.

Facts

On 15 March 2017, Mr Fazackerley (the Claimant) was dismissed for gross misconduct by DHL. DHL confirmed his dismissal in writing by letter dated 16 March 2017, which also advised of his right to appeal the decision.

About four days after receiving this letter, the Claimant contacted the ACAS helpline for advice. He was told by an ACAS advisor that before bringing proceedings against DHL, he should exhaust the internal appeal process. The Claimant was not told about obtaining an Early Conciliation (EC) Certificate nor did ACAS explain the statutory three-month limitation period that ran from the date of his dismissal.

Consequently, the Claimant lodged his appeal by letter dated 29 March 2017. The Claimant was not informed that his appeal had been unsuccessful until 22 June 2017. Four days later, the Claimant sought legal advice from a lawyer, obtained an EC Certificate and presented his claim to the Employment Tribunal (ET) on 19 July 2017.

Due to the amount of time that had passed since the Claimant’s dismissal, the claim was out of time.

Employment Tribunal

The ET had to determine whether the Claimant should be afforded an extension of time, by assessing whether it was not reasonably practicable for him to present his claims within the three-month statutory time limit.

The ET reiterated that the fact that an internal process was ongoing, or delayed, was not in itself a reason to justify finding that it was not reasonably practicable to present a complaint in time. However, the ET found that the ACAS advice was erroneous as they had not explained the time limit. Consequently, it was not reasonably practicable for the Claimant to comply with the limitation period.

Further, the Claimant was entitled to rely on the advice from ACAS, and there was no unreasonable delay on the Claimant’s part when he was later made aware of the time limit.

Employment Appeal Tribunal

DHL appealed, arguing that the Claimant did not ask ACAS about how to institute a claim and failed to ask ACAS more questions when he had the opportunity to do so. Further, DHL argued that the ET had erred in finding that the ACAS advice was erroneous. Finally, they argued that the Claimant’s reliance on the advice had not impeded his ability to bring a claim in time.

The EAT held that the ET was entitled to take the view that ACAS’ advice was erroneous. The ET found that although most appeals are dealt with speedily, ACAS had failed to qualify their advice within the time limit. The ACAS advice had rendered it not reasonably practicable for the Claimant to bring his claim within the time limit and consequently, DHL’s appeal was dismissed.

Comment

It is of note that the EAT commented that a differently constituted ET may have come to a different view as to whether the ACAS advice affected the Claimant’s ability to bring his claim in time. Nonetheless, as the Employment Judge had not made a perverse decision in finding that it had, the original decision was upheld.

Therefore this case reiterates the position that a Claimant cannot just rely on ignorance of the time limits, or a long delayed appeal process in order to obtain an extension to present a claim. However, where a Claimant relies on incorrect advice by ACAS, their extension may be permitted.

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.