Issue 131 - 2024 Summer term

This contains general guidance on the law that has been supplied by our Premier Partner for legal and HR services, Browne Jacobson LLP.

Guidance

Academy conversion support grant
Changes to the academy conversion support grant (ACSG) are due to take place from 1 September 2024. Most notably, maintained mainstream schools that apply to convert to academy status will only be eligible for the £25,000 conversion support grant if they are joining an academy trust in a group with at least two other schools. The schools must also be approved by the relevant regional director at the same time.

The government’s intention is to encourage schools to join larger multi-academy trusts (MATs), rather than converting to standalone academies or small MATs with just two schools. The ambition is for larger MATs to provide greater support and resources to schools, leading to improved pupil outcomes.

However, sector stakeholders have concerns about barriers for schools who wish to convert but are unable to find suitable MATs to join, particularly in rural areas with fewer existing MATs. There is also a risk that schools will seek to convert before the changes take effect in September, leading to a spike in conversions and limited resource to process those conversions. The DfE has not responded to these concerns, and it remains to be seen whether the changes will achieve the government’s ambition to encourage the development of larger, stronger MATs.

SEND capacity issues
The Office of the Schools Adjudicator (OSA) has recently highlighted a growing trend of non-compliance from schools when they are named on a child's education, health and care plan (EHCP). However, it is important to examine schools' reasons for non-compliance more closely in the context of what has been described as a ‘capacity crisis’ with respect to special educational needs.

Educational provision is a crucial element of an EHCP, and the named school is responsible for admitting and supporting that pupil. Schools can object to being named on a plan during consultation, but, once named, they have a legal obligation to admit that child.

Local authorities are expected to provide additional resources to schools where a pupil requires a particularly high level of support. However, with a significant increase in children being assessed as having special educational needs, schools and local authorities often face a shortfall in financial support and/or specialist resources. A lack of support is a significant concern for schools when failing to meet a child's needs and may result in that child, other children, or staff being unsafe in school. Non-compliance with an EHCP, therefore, is often a last resort for schools that cannot educate a pupil safely without additional resources.

Although OSA's comments reveal one side of the picture, we must consider the interconnected issues at play and examine how the system as a whole can expand its capacity to support every pupil in accessing education.

Can teachers be dismissed for having personal beliefs?
Yes, according to the Employment Tribunal’s decision in Lister v New College Swindon, where a teacher – Lister – held the belief that sex is binary and immutable and should not be confused with gender identity.

Despite a student asking Lister to call him by a male name and use male pronouns (this is how they wished to be identified), the college received a complaint from another student that Lister was not adhering to the request. The complaint detailed other inappropriate conduct, including repeating negative comments about gender reassignment.
A disciplinary investigation found that Lister had failed to follow the college’s policy on gender reassignment, and Lister was dismissed.

Lister lodged an Employment Tribunal claim, alleging that he was subjected to unfavourable treatment for having gender critical beliefs (that is, a protected belief) and manifesting these beliefs.

The Tribunal found that Lister had manifested his belief in an objectionable manner that ought to be prohibited to ensure the protection of others and the college’s policy on gender reassignment had sought to protect the pupil.

Lister has been banned by the Disclosure and Barring Service (DBS) from participating in regulated activities with a student.

The judgment reinforces the duty of educational bodies to protect students’ rights and freedom. It’s still important to remember that this needs to be balanced against a teacher’s right to hold personal and political beliefs. But if beliefs are manifested in a way that is harmful to students, it may be reasonable to dismiss.

Our legal partner, Browne Jacobson, is seeing more cases that deal with protected beliefs, including gender critical beliefs, and will continue to support members to navigate these claims.

Latest changes to employment rights
The following changes were made to employment rights in April 2024:
  • Carer’s Leave Regulation 2024: This new regulation entitles employees to take one week’s unpaid leave in any 12-month period for the purpose of providing or arranging care for a dependant with a long-term care need.
  • Family leave changes: There are extended protections against redundancy that is connected to family leave. The new protections mean that employees on family leave have priority in respect of being offered a suitable alternative role. The extended protections apply as follows:
  • Pregnancy and maternity leave: Protection begins when the employee tells their employer they are pregnant and continues from the first day of the expected week of childbirth (or the date of the birth) for a period of 18 months. If an employee has a miscarriage, the protections will apply two weeks after the date the pregnancy ends.
  • Adoption leave: The protections apply for an 18-month period from the date the child is placed with the employee for adoption.
  • Shared parental leave: If the employee has taken more than six consecutive weeks of shared parental leave (and has not taken maternity or adoption leave), the extended protection ends 18 months after the date of birth or the date the child was placed for adoption.
  • Flexible working update: Flexible working is now a day one right, and employees no longer need 26 weeks of service to request changes. Further changes are expected for summer 2024, which include allowing employees to make two requests in any 12-month period (previously it was one request in the same period).
The use of AI and IP
The use of copyrighted material to train artificial intelligence (AI) has prompted legal challenges within the intellectual property (IP) sector. The case of Getty Images v Stability AI is an example of active litigation where Getty Images has alleged unlawful use of copyrighted materials for training AI to generate their own images without a licence. This could have significant implications for how copyright is licensed in the future, which is a concern for academies licensing their content or using materials from other parties. 

This ongoing litigation underlines the importance of IP rights and the potential consequences of infringement. Schools and colleges need to be vigilant about how they acquire and use content, ensuring they have the right to use it. This awareness can help prevent legal issues and the associated financial and reputational damage. 

The case of Getty Images v Stability AI should prompt schools and colleges to review their content creation and use of AI. They may need to review their internal staff guidelines, online policies, and AI policies to issue clear guidance to staff about the risks associated with using AI, particularly where staff members use it to generate materials that the school or college then licences itself.

This guidance has been provided by Browne Jacobson LLP.

If you would like to seek advice from a legal professional please contact Browne Jacobson at 0370 270 6000. ASCL members can also call the ASCL Hotline on 0116 2991122 for support on legal issues relating specifically to their own employment.


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