Academies Act 2010 – TUPE Issues for the LA and Governors

Now that the Academies Act has been passed, schools wishing to convert in the next few months will need to take action to ensure that they receive key information, indemnities and warranties.  Although the current employer is required to consult employees and provide information to the school, it is easy to overlook the various types of information you will need to avoid unwelcome surprises.

A starting point from an earlier article is expanded below.

Insist on Full Disclosure

The Governing Body should request full information on:

  • The current contractual terms of employment of each individual.
  • Any one off agreements/terms that come into affect later such as individual ‘incentive’ payments
  • Any discretionary payments or terms made to an individual – important to be sure that they are only discretionary and not binding in future
  • Any special leave granted and whether paid or unpaid in the 12 months prior to conversion. This should include parental leave and similar so that you do not duplicate leave in the future.
  • Any contractual policies applying in general or to particular groups of staff which are likely to have financial consequences e.g special leave, PPA time over the 10% national term for teachers.
  • List of staff who are suspended or absent for any reason especially long term such as ill-health, maternity leave on the date of conversion with the known or expected return or review dates.

Actual or Potential Liabilities

In addition, the Governing Body should request details of any actual or potential liabilities that will pass on transfer of the staff such as:

  • Personal injury claims by current or former staff that have not been concluded
  • Grievances or disputes regarding an individual’s terms of employment
  • Employment Tribunal claims including discrimination, bullying or harassment
  • County Court claims such as significant breach of contract claims
  • Civil claims such as harassment
  • Pending or actual police investigations or prosecutions
  • Health and safety improvement notices etc and copies of any reports in the last three years (if not in the school’s possession)

The LA may also wish to seek warranties and indemnities to ensure that any potential legal claims or financial liabilities have been declared and investigated by the school sufficiently. That will be important in the light of the surplus and deficit provisions in the Act.

Those type of information issues will form the bulk of the work to ensure that you have a clear picture of each individual’s employment terms and record going forward. However, there is a sting in the tail of the TUPE Regulations of which you need to be aware.

Detrimental changes to an individual’s contractual terms after transfer will be in breach of the regulations and potentially give rise to claims against the school. There are limited exceptions for example, economic and technical organisational reasons. Schools should not think that the transfer of staff offers a new canvas on which to paint a new scenario of terms of employment as unfortunately the schools will need to take the TUPE route of addressing transfers.

The above is a brief overview. Are you interested in being guided through the issues and process? If so, contact us via our website   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.

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