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.

Meeting equality needs

Q In my college there is a member of staff who has a medical condition which comes under the Equality Act 2010. When his condition was first diagnosed, we made some ‘reasonable adjustments’ for him but now he wants us to extend these. Do we have to do this?

A Reasonable adjustments are a key part of the Equality Act 2010 – which has now replaced the Disability Discrimination Act 1995 – and can be very important in enabling a disabled person to retain his/her employment. Employers often underestimate the extent of their duty to make ongoing adjustments and can thus fall foul of the law.

If you made an adjustment and this now has proven not to be effective in overcoming his disadvantage, as the employer you will need to think again – it is not enough to assume that, having made one adjustment, the duty is discharged.

One example of this might relate to time off sick for disability-related reasons. Supposing, with advice from occupational health, an additional eight days a year has been agreed. If the member of staff exceeds that amount, the employer might then decide to treat the employee as if s/he were any other employee who has exceeded the amount of absence required to activate the absence management policy. This might well constitute discrimination.

You will need to review the adjustment and determine whether it is ‘reasonable in all circumstances’ to accept the extended adjustments he is proposing.

Examples of adjustments might include:

• relaxing absence rules and limits for those with disability related sickness absence
• excluding disability related absence from calculations of when half or no pay is appropriate
• revising flexible working hours rules to allow travel outside of rush hours
• accepting lower levels of output, accuracy

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Shrill advice

Q I should be grateful for some advice about whistleblowing. I am really concerned about a colleague who I think is committing a criminal offence at work. I have been told that my employer must protect me if I report my concerns but I am anxious that if other colleagues discover what I have done things will be very difficult for me.

A Whistleblowers are protected in the public interest to encourage them to speak out if they find improper, illegal or negligent behaviour by anyone in their workplace.

You are right that if you follow the correct procedures it will be considered a ‘protected disclosure’ and your employment rights will be safeguarded. You must make any disclosure in good faith and reasonably believe that the information is substantially true and that you are making the disclosure to the right ‘prescribed person’ (who would be your employer or the person responsible for the area of your concern).

If you are victimised or suffer any detrimental treatment because of whistleblowing you should immediately seek legal advice. A recent employment tribunal held that the onus is on the employer to prove that any detrimental treatment that occurs following a protected disclosure was wholly disconnected from that disclosure. You will find some more useful information at the Public Concern at the Work website www.pcaw.co.uk

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Human rights plea over ‘wrongful’ CRB

Q A teacher at our school has recently experienced some difficulty when applying for posts as her CRB disclosure includes reference to a past arrest though it resulted in no further action and a clear statement that she had no part in the offence. Does she have any grounds for seeking compensation from the police?

A A recent case involving the Nottinghamshire constabulary is very pertinent to this question. The Court of Appeal has decided that a person cannot bring a claim in negligence against the police in respect of information provided to an employer during an enhanced Criminal Records Bureau check.

It was held that the police do not owe a duty of care to members of the public in this situation and that there should not be such a duty of care as this would create a conflict with the statutory purpose of protecting vulnerable young people.

However your colleague might consider other ways forward such as judicial review, a claim for breach of Article 8 of the European Convention on Human Rights or a possible claim under the Data Protection Act. In any case she should certainly seek legal advice. See "Latest on CRB checks and police liability" for details on the case.

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