Many schools have expressed an interest in learning more about what is entailed in becoming an Academy. The Academies Bill is currently being reviewed by the House of Lords but, to date, the Bill does not contain any references to the transfer of staff. That is surprising as about 70% of a school’s budget is staffing and the staff are key players in the success of a school.
Legislation Applying to Transfers of School Staff
Other current legislation also deals with school organisational changes and contains clauses which state specifically that staff will be transferred on existing terms on the implementation date unless an individual’s contract was for a fixed term or temporary and due to end before the transfer date. For example, if an infants and a junior school were combined by extending the age range of one school, this would be implemented via consultation on the proposals and, if approved, by the automatic application of the transfer clause in the statutory regulations. The clauses provide for a transfer without the need to resort to the TUPE regulations which is simpler and quicker to implement and provides protection for the transfer of the staff.
So how will staff be transferred to an Academy? Currently, the DoE appears to be thinking that the TUPE regulations will apply. Schools will need to avoid the pitfalls of the TUPE regulations.
Issues to Consider in a Transfer of Staff
What points should Governors and Head Teachers look out for?
- The current employer e.g. the Local Authority will be required to consult with affected staff and seek information from the new employer about the transfer including any changes to terms etc. that are proposed.
- The consultation will need to be formal and involve the recognised trade unions and, if none, the local authority will have to arrange for the staff to elect employee representatives specifically to inform and consult about the transfer
- The new employer will be obliged to provide specific information to the local authority for consultation purposes including any organisational changes.
- Staff will need to be informed about who is their new legal employer and the effective date of their transfer.
Senior managers and Governors will need to think carefully about the following issues:
- If you are not thinking of making changes to terms or organisational structures in the first few years, transfers are relatively straightforward.
- Transfers under TUPE will usually mean that staff move across on their current terms of employment including collective agreements. Terms are protected and may only be changed in limited circumstances under the TUPE regulations. However recent case law has indicated that future changes to collective agreements will not automatically apply to transferred staff. Be wary of any contractual clauses or of giving any undertakings that apply amendments to collective agreements automatically to contracts of staff after the transfer date.
- What liabilities will you inherit with the transfer of staff? Consider requring indemnities and/or warranties from the transferring employer so that you are aware of any outstanding claims. This will enable you to discuss suitable balancing payments to cover those liabilities. This is important as the Bill may contain amendments regarding the treatment of budget surpluses or deficits.
- Proposed organisational changes or staffing reductions will need to be considered in the context of the TUPE regulations. There are narrow grounds for making such changes but if you step outside of those you may face unfair dismissal claims or even automatically unfair dismissal claims.
The above is a brief overview.
Are you interested in being guided through the issues and process? If so, contact us via our website www.hr-management-dimensions.co.uk. We apply the many dimensions of people management and organisational capability to help you to produce commercially and service focused solutions to human resource management issues.
¹ The Schools Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2007 No. 1289,
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