With the newly elected Labour Government set to introduce sweeping reforms to employment law, many of these changes will have significant implications for special schools.
The proposed Employment Rights Bill, expected to come into force during October 2026, includes key changes that will affect everything from unfair dismissal rights and flexible working, to trade union involvement and statutory sick pay. Other proposed changes, yet to be finalised, may also reshape how schools manage employment matters.
In this guest blog, Martin Cornforth, Partner at Chattertons Solicitors & Wealth Management provides an overview of the changes that could have an impact on the operation and staffing of special schools.
Unfair dismissal rights from day one
The Employment Rights Bill will remove the qualifying period for claiming unfair dismissal.
The rationale for the current two-year service limit is that employers may be deterred from recruiting staff if there is a risk of an unfair dismissal claim. Labour has indicated that it will protect an employer's right to require a probation period and will consult on this. Labour has indicated that they would prefer the maximum length of a probation period to be nine months.
Although working in special schools can be a very rewarding experience, it can require a degree of resilience and patience not suited to everyone. Special schools will need to work even harder during probation periods to ascertain suitability for employment.
Due to funding constraints, many special schools will be considering restructures and may need to consider redundancies. It does not appear from Labour's current plans that the right to a statutory redundancy payment will also be a day-one right but selecting staff for redundancy simply because they have less than two years' service will no longer be an option.
Extension of time limits
Labour confirmed that the time limit to bring an employment tribunal claim will be increased from three to six months. Currently, the only claim with a time limit of six months is a statutory redundancy payment. This is not included in the Employment Rights Bill.
Together with the removal of the two-year service requirement, this change is likely to increase the number of unfair dismissal claims.
When special schools identify the need to take disciplinary action against an employee the investigation will often be complex due to safeguarding concerns and the like. Given the increased risk of unfair dismissal claims, special schools will need to take even greater care to ensure that an investigation has been sufficiently thorough.
End ‘fire and rehire’
The Employment Rights Bill would make it automatically unfair to dismiss an employee because they have not agreed to a change of terms and conditions unless there are financial difficulties and the changes are unavoidable.
Restructures often require the use of "fire and re-hire" to enable employers to make changes. Many special schools are feeling the pressure to restructure due to funding constraints and as a response to inspection reports. If the Employment Law Bill passes unamended, then it will be much more difficult to implement restructures in the future. As such, special schools may need to work more closely with trade unions to implement restructures.
Single status of worker
For employment rights, an individual providing services may be an employee, worker or self-employed. Currently, those with worker status have limited employment rights, however, Labour would like to reduce the three-tiered system to two categories - employed and self-employed. This could mean an increase in individuals with employment rights, however the proposal is subject to consultation and the detail is currently lacking. This is not included in the Employment Rights Bill.
Any special schools engaging workers to undertake invigilation, counselling, therapy, etc will need to ensure that employment status is clear following any changes.
Flexible working a day one right
Currently, workers only have the right to request flexible working but employers have a broad discretion in refusing such requests provided that they have one of the prescribed reasons. The Employment Rights Bill will mean that in addition to one of the prescribed reasons the refusal of the request must be reasonable. As such it will now be more difficult for employers to refuse requests for flexible working.
Right to ‘switch off’
Labour plans to introduce a new "right to switch off" allowing employees to disconnect outside of working hours and not be contacted by their employer. At this stage, it appears that statutory guidance would be "non-binding." It appears that employees would have a right to request this but that employers won't necessarily be required to consent, as is currently the case with a request for flexible working. This is not included in the Employment Rights Bill.
Trade Union rights
The Employment Rights Bill includes the following provisions:
- repeals certain restrictions on balloting and picketing, particularly those introduced recently.
- The process for unions obtaining "recognition" by an employer will be simplified, Labour will remove the requirement for a union to show that at least 50% of workers are likely to support recognition and modernise the rules for the final ballot where workers vote on recognition of a trade union.
- Trade unions will have a right to access workplaces, governed by a transparent framework, designed in consultation with unions and businesses, to allow union officials to meet, represent, recruit and organise members.
- A new duty on employers is to inform all new employees of their right to join a union and to remind all staff on a regular basis. This will be required as part of the written contract of employment that all new workers are entitled to.
- In cases where trade union officials or trade union learning/equality representatives claim they were denied reasonable time off for union duties, the employer must demonstrate that the time off requested was unreasonable.
- Workers will be protected from suffering a detriment for participating in lawful strike action.
- Strengthening of facility time for Union representatives.
- Unions can appoint an "equality" representative.
As noted above reforms to unfair dismissal and "fire and re-hire" are likely to strengthen the bargaining power of trade unions. When combined with reforms that strengthen trade union powers, special schools may need to work more closely with trade unions to reach agreements.
Strengthened Statutory Sick Pay
The Employment Rights Bill will strengthen statutory sick pay (SSP) by removing the lower earnings limit to make it available to all workers and remove the waiting period. This means that SSP will be payable from the first day of a sickness absence.
Grievances
Labour will enable employees to collectively raise grievances about conduct in their place of work with Acas (the Advisory, Conciliation and Arbitration Service). This will be in line with the existing code for individual grievances. This is not included in the Employment Rights Bill.
School Support Staff Negotiating Body
The Employment Rights Bill will re-establish The School Support Staff Negotiating Body to negotiate national terms and conditions and pay rates for support staff.