- Date requested: 21 June 2010
- Publish date: 6 August 2010
- Updated: 26 April 2012
In light of the government’s drive to enable a speedy ‘conversion’ for schools to become academies by September 2010 (as reflected in the recent document ‘guidance for schools becoming academies’) there is concern that:
- The guidance refers the need for governing bodies to act quickly, despite the fact that there is no ‘conversion’ procedure in existence and the department’s ‘encouragement’ to pass an early resolution is premature
- Governing bodies do not have a clear understanding of the implications of any decision or resolution to proceed
- There is no legal framework for a ‘conversion’ procedure
- Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) -could be affected. The document states that consultation of the changes can be expected to take place during a period of school closure and will meet legislative requirements. However, given that the consultation will take place during a period of school closure, teachers would not be adequately consulted about the changes due to the holiday period as teachers do not have any flexibility
- Legislation states that union representatives must be informed of any proposed transfer to a new employer
- Any governing body applying to become an academy employer must give full information to the local authority, in order that its obligations to employees can be met
- Teachers will not be adequately consulted given that the consultation is to take place during the holiday period and therefore be unlikely to be available for consultation
- The guidance suggests that terms and conditions of staff may change soon after the conversion if there is consultation
- The guidance also proposes that an employer seeking to make changes before the transfer could meet legal requirements by seeking staff agreement
Neither statement appears to be a correct view of the requirements of TUPE requirements. Any change which is to be made by an employer before a transfer would have to meet TUPE requirements and/or legal provisions on a unilateral change of contract provisions.
It was also noted in an announcement on 2 June that 1,114 schools have expressed interest in converting to academy status. Could the department provide a list of those relevant schools?
The government simply wants to enable schools which are ready to do so, to convert at the beginning of the academic year. Some schools will be ready to convert at this point, and others will choose to convert at a later date. We trust schools to make the decision about what is right for them.
The provisions are permissive rather than coercive and there is no pressure on schools to convert by this September.
With respect to governing body resolutions taken before commencement of the legislation, section 16 of the Act makes provision for actions taken before commencement (such as an application to the Secretary of State, consent of trustees, etc.) to be treated as if taken after commencement. There is further explanation of this in the explanatory notes, which are available alongside the Bill on the UK Parliament website.
The department envisages that in many cases schools will not be taking any measures and will simply be transferring the staff over to the academy, and so there will be no duty to consult under TUPE. However, the department does expect consultation to take place as a matter of good practice.
Where the TUPE consultation process may be found to be inadequate is if it were conducted during a period when the union was unable to contact the majority of staff to canvass their views. Then the department has advised schools that they must begin their TUPE consultation as soon as possible because the period must be generally sufficient to give time to seek agreement with staff. How long this will be will vary from school to school and case to case.
Our guidance simply states that the contracts of staff both before and after the transfer generally cannot be changed if the change is for a reason connected with the transfer. No measures will be taken either before or immediately after the transfer, and so there will be no obligation to consult. It is correct to say that any changes would be subject to the normal law in relation to unilateral change of contract provisions.
As for information about schools expressing an interest in conversion to academy status. A list of the schools that have registered an interest has been published on the Department for Education’s website.