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Masthead Education -  Employment

Welsh council wins appeal over whether SEN allowance was payable to teachers

A Welsh council has won an appeal over whether former teachers were entitled to be paid SEN (Special Educational Needs) allowance under their contracts.

The Employment Tribunal had held that the conditions for entitlement were satisfied in each case, and accordingly, that Swansea City Council’s failure to pay SEN allowance was a breach of contract.

However, in Swansea City Council v Rees & Ors [2018] UKEAT 0253_17_0205 Mrs Justice Simler, President of the Employment Appeal Tribunal said the tribunal had erred in so concluding in two respects.

“First, by construing the conditions of entitlement in paragraph 25.2(d) of the Document [School Teachers' Pay and Conditions Document 2010 and Guidance on School Teachers Pay and Conditions] so as to give no effect to the requirement that the setting of a teacher's work must be "analogous to a designated special class or unit" to qualify, the Employment Tribunal erred in law,” the judge said.

“Secondly, the Employment Tribunal erred in its approach to condition (iii) [of paragraph 25.2(d)] in concluding that the "unit or service" for the purposes of determining whether the claimants had "a greater involvement in the teaching of children with [SEN] than is the normal requirement of teachers throughout… the unit or service" was the whole education authority rather than the home tutoring service.”

Mrs Justice Simler went on to say that on a proper construction of the Document, and in light of the evidence, the claimants were not entitled to be paid SEN allowance for the relevant periods “because (a) home tutoring was not an analogous setting to a designated special class or unit; and (b) because they did not establish that they had a greater involvement in the teaching of children with SEN than is the normal requirement of teachers throughout the unit or service, when condition (iii) is properly understood and applied to the facts of their case”.

The local authority’s appeal was therefore allowed. “Further, for the reasons explained in the judgment, their claims for breach of contract fail and are dismissed,” Mrs Justice Simler said.

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