This document summarizes an employment law masterclass on whistleblowing, employment status, and settlement agreements. On whistleblowing, it discusses when disclosures are protected and tricky areas like complaints. On employment status, it explains the categories of employees, workers, and independent contractors and implications of the growing gig economy. On settlement agreements, it outlines requirements like being agreed through ACAS and statutory claims that cannot be settled. It also discusses common issues like tax treatment, confidentiality clauses, and approval needs for academies.

1. HR for Education 2017
Employment law masterclass

2. Employment Law Masterclass
Helen Badger, Partner
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3. We will focus on
Whistleblowing
Employment status
Settlement agreements

4. Whistleblowing
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5. Why is this an important topic?
• Hot topic for all public sector employers as a result of
extensive negative press
• Public Concern at Work has advised over 1600 whistleblowers
from the education sector since 2011
• PCaW saw an 80% increase in reports from education sector
in a 12 month period
Over 90% of ESFA investigations into
academy finances are a result of
whistleblowers

6. A brief summary of the law
• The dismissal of an employee will be automatically unfair if
the reason, or principal reason, for their dismissal is that
they have made a "protected disclosure"
• PIDA also protects workers (so, for example, supply
teachers) from being subjected to any detriment on the
ground that they have made a protected disclosure
• No cap on compensation and no requirement for a minimum
period of service

7. A brief summary of the law
• Must be a qualifying disclosure?
– Disclosure of information. The worker must make a disclosure
of information. Merely gathering evidence or threatening to
make a disclosure is not sufficient.
– Subject matter of disclosure. The information must relate to
one of six types of "relevant failure"
– Public interest the worker must have a reasonable belief that
the disclosure is in the public interest.
• And also a protected disclosure
– The identity of the person to whom disclosure is made.
Internal/external disclosure

8. Tricky areas
Recognising a disclosure
– An employee’s complaint does not become a “whistleblowing” concern
because it is raised through that policy or titled “whistleblowing”
– It does not matter whether it is in writing
– It does not matter that it has been raised before
– A complaint is potentially a protected whistle blowing complaint if four criteria
are met:
 The employee discloses facts, and;
 Those facts tend to show (amongst others) a breach of health & safety, a
legal duty or a criminal offence, and;
 The employee reasonably believes the facts are true, and;
 That the employee reasonably believes there is a public interest in their
disclosure

9. Tricky areas
• Consider an incident report, it will usually be:
– Submitted by an employee
– Relate to pupil safety
– Reasonably believed
– As a school, acts which impact on the safety of pupils or could affect the
quality of education are likely to be viewed as of “public interest”
• This illustrates that “whistle-blowing” is a very common event in schools and
usually causes neither difficulty or conflict.
• Leaders do not need to become lawyers, but they do need to be aware of the
general character of a protected disclosure; enough to recognise that they need to
(1) take care and (2) take advice from HR.

10. Tricky areas
• Complaints that have been investigated and found not to be
not true
• Complaints of bullying
• Grievances
• Matters affecting a limited number of employees

11. Tricky areas
• Complaints to the media/ Ofsted/ DfE/ EFSA.
• The manner vs the fact of the disclosure
• EFSA and HM Treasury approval required for any special
severance arrangements

12. Employment status
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13. Employee, worker or self-employed?
• 3 categories of individuals providing their services in the job
market:
• Employee
• Worker
• Self-employed independent contractor

14. Why does it matter?
• Employers and employees have implied contractual
obligations (e.g. trust and confidence)
• Employees have some core legal protections (e.g. unfair
dismissal, redundancy payments and TUPE)
• Only employees are covered by the ACAS Code on
Disciplinary and Grievance Procedures
• Tax treatment
• An employer is vicariously liable for acts done by an
employee in the course of their employment

15. Worker rights
• Protection against unlawful deductions
• National minimum wage
• Paid annual leave
• Rest breaks
• Maximum working week
• Right to be accompanied at disciplinary or grievance hearing
• Protection for making a protected disclosure
• Protection under the Data Protection Act 1998
• Protection under the Equality Act 2010

16. Implications of the “gig economy”
• Surge of cases determining whether an individual is self-employed or a
worker.
• Definitions:
• "an individual who has entered into or works under (or, where
employment has ceased, worked under:
• A contract of employment; or
• Any other contract, whether express or implied and (if it is
express) whether oral or in writing, whereby the individual
undertakes to do or perform personally any work or services for
another party to the contract whose status is not by virtue of the
contract that of a client or customer of any profession or business
undertaking carried on by the individual".

17. The ‘gig economy’
Aslam & Farrar v Uber (ET)
• Uber drivers are 'workers' and not self-employed, according
to the Employment Tribunals in a test case brought by two
claimants
• Judgment strongly critical of Uber for attempting to argue
that it was technology platform, rather than a transport
company

18. The ‘gig economy’
Pimlico Plumbers Ltd v Smith (CA)
• Plumber engaged on a self-employed basis was a “worker”
for the purposes of ERA 1996, holiday pay, disability
discrimination.
• The degree of control exercised and Mr Smith being
expected to take on a minimum 40 hours a week was
inconsistent with a client or customer relationship.

19. Next steps
• The Uber case is limited in factual scope (unless you’re a
company named Deliveroo…) – see Citysprint
• BUT this and the Pimlico case are the latest in a string of
cases to undermine the private sectors attempt to introduce
flexible working with little liability or security (the so-called
‘gig economy’)
• Employers should be reminded of the complexity of
determining employment status, and the risks of getting it
wrong
• In November 2016, the Department for Business launched
the Taylor Review to consider the implications of new
models of working.

20. Taylor review
• The Taylor Review report was published in July 2017 and
recommended:
– Rename “worker” to “dependent contractor” and re-
clarify distinctions
– Additional rights for dependent contractors such as
written statement of terms
– Expedited hearings for determining status
– Right to guaranteed hours after 12 months on a ZHC
– “Rolled up” holiday pay for dependent contractors

21. Taylor review - agencies
• The following concerns in relation to agency workers were
raised:
– Swedish derogation
– Substitute for permanent staff
– Use of umbrella companies

22. Settlement agreements
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23. Settlement agreements
• Any agreement to settle or waive most statutory claims will be void
unless:
• Agreed through ACAS;
• Recorded in settlement agreement that complies with certain
statutory requirements.
• Settlement of claims:
• Personal injury claims – can include claims that the employee is aware
of and potential claims of which the employee is aware
• Pensions claims – not possible to waive rights except in limited
circumstances
• Future claims – terms intended to settle claims which the employee is
not aware of must be “absolutely plain and unequivocal”.

24. Settlement agreements
• Certain statutory claims cannot be settled through a
settlement agreement. E.g.
• Failure to inform and consult in collective redundancies
• Failure to inform and consult under TUPE
• Agency worker claims
• Rights under the Data Protection Act 1998

25. Settlement agreement – common issues
Tax treatment
• any part of a payment which is equivalent to notice is
taxable if there is a contractual PILON
• Also taxable where there is an “auto-PILON”
• Tax indemnities
Confidentiality clauses
• What is the extent of the confidentiality?
• Fact/terms/circumstances leading to termination?
• Third party obligations

26. Settlement agreements – common issues
References
• Overly glowing references
• Duty not to mislead
• Obligations where “risk of harm”
• Pro-forma reference requests
• Sickness record
• Resignations before completion of a disciplinary process

27. Keeping children safe in education
• Criteria for referral to DBS
• has harmed or poses a risk of harm to child or vulnerable adult AND
• has been removed (or would have been removed if they had not left)
from regulated activity
• If accused person resigns or their services cease to be used and they meet
the criteria, it will not be appropriate to reach a settlement agreement.
• Every effort should be made to reach a conclusion in cases bearing on the
safety and welfare of children.
• Settlement agreements where the employee resigns in exchange for
disciplinary case being dropped should not be used where there is a
refusal to cooperate or resignation

28. Approval requirements
• Academies Financial Handbook 2017
• Duty to consider
• Trustees believe proposed payment is in the interests of
the Trust
• Whether payment is justified based on legal assessment
of chances of losing case at ET
• Level of settlement must be less than the legal
assessment of what could be payable in ET proceedings.

29. Approval requirements cont’d
• Severance payments should not be made as reward for failure –
e.g. gross misconduct or poor performance
• EXECPT – where the individual is likely to be successful in
employment claim because of employment law procedural errors
• In poor performance cases – acceptable comparison is time and
cost of taking someone through performance management process
• £50,000 delegated authority for non-contractual/non-statutory
payments
• Same level of scrutiny should be applied to settlements under
£50,000
• Need a business case justifying the level of settlement

30. Online resources
www.brownejacobson.com/education

31. Get in touch
Helen Badger |+44 (0)121 237 4554
helen.badger@brownejacobson.com
Please note
The information contained in these notes is based on the position at October 2017. It does,
of course, only represent a summary of the subject matter covered and is not intended to
be a substitute for detailed advice. If you would like to discuss any of the matters covered
in further detail, our team would be happy to do so.
© Browne Jacobson LLP 2017. Browne Jacobson LLP is a limited liability partnership.