Hotline

The ASCL hotline is a completely confidential service available to answer members’ questions on issues that arise in school/college. The questions and answers below are based on real calls to the hotline. To protect confidentiality, all scenarios have been anonymised. If you need advice on a personal or professional issue, call 0116 299 1122 and ask for the hotline officer.

Tribunal: witness worries

Q I have agreed to be a witness in a forthcoming employment tribunal brought by a teacher who used to work in the school. I am extremely anxious about the procedure, particularly because I have been told that I will have to read my statement aloud. Is there any way that I can avoid doing this?

A You can find out about what happens at an employment tribunal by looking at the website www.employmenttribunals.gov.uk

There has recently been new guidance on the practice of reading witness statements aloud in tribunals. Although the guidance recognises that sometimes it might be helpful for a particular statement to be read out, it recommends that the assumption that this needs to be done be reconsidered. You should certainly ask the lawyer for the school if the matter can be looked at in your case – although ultimately the decision will be taken by the tribunal.

It is a good idea to practise reading your statement aloud and turning to the documents in the hearing bundle that are referred to in your statement. Try to speak slowly and carefully and be as attentive as possible to the panel and the legal representatives.

The tribunal consists of a panel of three members: an employment judge (who is legally qualified) and two lay members. The judge should be addressed as sir or madam. You should always tell the truth and stick to the facts, answering all questions simply and directly. If you don’t know the answer, say so – there is no problem if you genuinely can’t remember or don’t know. If you don’t understand the question, ask for it to be explained or repeated.

Before giving evidence you will stand while you either take the oath on a holy book which the tribunal will have, or affirm, that is, take a solemn civil promise which is not linked to a religious belief. If there is a break in the hearing while you are giving evidence, for example over lunch or overnight, you will be unable to discuss the matter with anyone because you will continue to be under oath.

The more familiar you can become with the procedure beforehand, the easier it will be, so take any opportunity that you can to discuss it with the lawyer representing the school and do look at the tribunals service website.

Time to retire?

Q I am the business manager in a school and we employ several people who will be reaching normal retirement age over the next few years. Will we be able to continue to insist that they retire at 65 in future?

A As widely anticipated in the press, the Department for Business, Innovation and Skills has confirmed that the default retirement age will be abolished from 1 October 2011 (with phasing in beginning in April 2011). The government has decided that the dismissal of older workers should be managed either by discussion or by formal performance management procedures. Although there will be certain categories of job which may be exempt (firefighters, for example) it is unlikely that anyone employed in schools and colleges would not be covered by the new legislation. However, it may be possible for an employer to enter into an agreement which sets a contractual default retirement age, as long as it is ‘legitimate and proportionate’. See www.ascl.org.uk/Home/Members_Area

There is also useful information at direct.gov.uk and ACAS has issued a flowchart showing the transitional arrangements and a very useful 20-page guide for employers on working without the default retirement age. Both are available on the ACAS website, www.acas.org.uk

Liable for reference?

Q I recently wrote a reference for a teaching assistant who had been dismissed by the school for gross misconduct (nothing to do with child protection). She has now claimed that my reference has spoilt her chances of future employment and is threatening to take action against me. Can you advise me?

A Clearly you will have thought very carefully about what to put in the reference you wrote as you owe a duty of care to your ex-member of staff and also to any potential employer. There will be no grounds to challenge your reference as long as it was written truthfully and without malice.

The general rule is that references must be accurate and fair and not give a misleading impression, even if individual components of the reference are all accurate. Emotive language should be avoided and opinions must be clearly stated as being opinions and based on verifiable facts. You would be breaching a fundamental duty to the employee if you disclosed in a reference any complaints of which the ex-employee was unaware.

The best practice is to be as open as possible about references with the individual concerned. It is always wise to seek legal advice concerning references if unfavourable comments have to be made.

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