Transferring School Staff To Academies
The Academies Act 2010 has given maintained schools the right to become academies (publically funded schools independent of local authority control) should they wish to do so. Academies will have greater freedom to purchase private services (including HR and legal services), to buy back services from the local authority and to set their own pay and conditions for staff.
Where schools choose to become academies there are employment law implications. Where a maintained school becomes an academy the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) will apply. This means that employees working in the maintained school will automatically transfer to the academy. The academy will step into the shoes of the maintained school and it will become the employer. This brings with it the requirement to elect and consult with employee representatives on the proposed change of employer and the implications of the transfer (including any changes to working conditions).
Any dismissal will be automatically unfair where the sole or principal reason for the dismissal is the transfer itself or a reason connected with the transfer except in very limited circumstances. Staff may refuse to transfer (known as objecting), but the effect is to terminate their employment without any right to compensation.
The employment rights of employees will be protected under TUPE, so teachers and support staff will retain their contractual rights on transferring. For example, the statutory School Teachers’ Pay and Conditions Document and the ‘Burgundy Book’ (conditions of service for school teachers) will be incorporated into staff’s contracts of employment upon transfer. Similarly, any local agreements between the local authority and the recognised teacher unions together with any arrangements with support staff will continue to apply. Likewise, any change to terms and conditions of employment which is connected with a relevant transfer is invalid except in very limited circumstances.
But that is not to say the new academies will be completely hamstrung by TUPE when it comes to negotiating changes with staff. Where it can be shown that changes are nothing to do with the transfer, or that the dismissal or change was for an economic, technical or organisational reason entailing a change in the workforce then changes can be made.
This is a very technical area of law which is beyond the scope of this article. It is further complicated by the need for academies to ensure that changes to contractual terms must be handled with care so as to reduce the possibility of breach of contract claims.
How DCES Can Help
DC Employment Solicitors (in conjunction with the South East Employers Association) provides seminars to headteachers and governors and most recently dealt with this very topic; explaining methods and strategies for implementing changes effectively and with reduced risk. For further information please contact Daryl Cowan.
