/ ACADEMY TRANSFERS
GUIDANCE FOR SCHOOL REPRESENTATIVES & ACTIVISTS

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INTRODUCTION1

-Teachers’ terms of employment

SECTION 1TUPE OVERVIEW4

-Individual employee rights on transfer

-Collective rights on transfer

-Being informed and consulted

SECTION 2TRANSFER OF CONTRACTS:

PROTECTING EXISTING TERMS CONDITIONS10

-Transfer of STPCD provisions

-Transfer of Burgundy Book provisions

-Transfer of contractual rights under local agreements

-Pensions

-Continuity of employment

-Can the academy change any terms and conditions?

-Can the academy dismiss teachers?

-Which working arrangements do not qualify as contractual terms?

-Taking steps to ensure the transfer of teachers’ contractual entitlements

-Long term protection of terms and conditions

SECTION 3TRANSFER OF COLLECTIVE AGREEMENTS19

-What is a collective agreement?

-How can I ensure that collective agreements are transferred?

SECTION 4REORGANISATION20

-Right to consultation

-General principles

-Procedures for matching staff

SECTION 5TRADE UNION RECOGNITION 23

-Seeking adoption of new recognition agreement

-Arrangements for trade union facilities

SUMMARY AND CHECKLIST OF ACTIONS25

USEFUL LINKS28

1

INTRODUCTION

This booklet has been produced to explain the legal provisions that can be used to assist in protecting members’ rights when a school becomes an academy. It can also assist where an established academy is taken over by anexisting academy chain or where a free school is established upon the merger, take-over and/or closure of existing schools or services. It is intended to provide technical advice to supplement the Academies Toolkit “Protecting members in Academies” which is aimed at school representatives in those academies which are in the process of transferring to academy status or have transferred already.

The relevant law is contained in the Transfer of Undertakings (Protection of Employment) Regulations 2006, ‘the Regulations’, often described as ‘TUPE’.

The TUPE regulations were amended on 31 January 2014. Advice and guidance on the new provisions appears in shaded boxes throughout this booklet.

The TUPE regulations add to the rights that the Union already has to receive information from employers and to be consulted on matters affecting its members;these rights arise from the NUT’s status as an independent trade union, recognised by employers in the Education Sector.

The Regulations apply where employees are transferred from one employer to another, because the work that they are doing is moved across.They apply where a commercial business is taken over by another, where a service contract is outsourced, but also where control of a school is being moved from one body to another, where that involves a change of employer.The Regulations therefore apply where a maintained school becomes an academy and where an established academy is transferred to an existing academy chain. They also apply where free schools are established upon the merger, take-over and/or closure of existing schools or services.

Under TUPE, employees’ contracts, collective agreements, trade union recognition and facility arrangements must be transferred to the new employer. The Union must be given information about the transfer process and must be consulted about any changes to working practices or contracts.

These TUPE rights can be used as tools to encourage and support members’ union activities.They can be used to demand staff and union involvement in the transfer process, to allow the school group to engage in the transfer process, and they can be used defensively to protect individual members’ rights.The NUT believes that legal rights and protections can be used most effectively in a collective manner, to build the Union group and develop participation in the group’s activities.

TEACHERS’ TERMS OF EMPLOYMENT

In order to understand how TUPE works, it is important to have an understanding about the legal framework for teacher employment.The chart below sets out the main types of schools and which body is the employer in those schools.As can be seen, although the governing body makes decisions regarding appointments and dismissals in schools, the local authority is the employer of teachers in community and voluntary controlled schools.

WHO IS THE EMPLOYER OF TEACHERS?
SCHOOL / COLLEGE / EMPLOYER
Community / Local Authority
Voluntary Controlled / Local Authority
Maintained Nursery / Local Authority
Community Special / Local Authority
PRU / Local Authority
Foundation / Governing Body
Voluntary Aided (inc. nursery) / Governing Body
Trust School / Governing Body
Academy/Free school / Academy Trust
Alternative Provision Academy/
Free School / Academy Trust
Independent / Proprietor/Board

N.B.This table applies to full time and part time teachers on permanent or fixed term contracts. The position of agency and 'self-employed' teachers is more complicated.

It is also important to understand the sources of the terms of most teachers’ employment contracts.There are a number of sources, and the way that TUPE applies to them differs.

  • The first element is the School Teachers’ Pay and Conditions Document (STPCD, sometimes referred to as the Blue Book).This sets pay rates and working time provisions.The Document is published annually by the Secretary of State for Education, and applies by law to all teachers in the maintained sector.Because the STPCD applies automatically only in the maintained sector, it will only apply to teachers in academies if there is specific agreement, or if a teacher was employed in the school before it became an academy.This is explained further below.
  • The second source of terms in a teacher’s employment contract arises from the Burgundy Book.This is the name given to the national collective terms and conditions, agreed between the local government employers’ umbrella body and the education sector unions.It provides in particular for sick leave and pay and maternity leave and pay. The Burgundy Book is incorporated into the contracts of all teachers who are employed in community and voluntary controlled schools.It is also incorporated by agreement into the contracts of all teachers employed in voluntary aided schools and foundation schools.
  • The Burgundy Book also contains recommended arrangements regarding the Unions' collective presence in schools.This includes provisions for consultation and negotiation between employers and trade union representatives, and sets out expectations on Union ‘facilities’.Union ‘facilities’ are the arrangements that employers provide to enable the union to function, such as time off for officers and representatives, consultation and negotiation arrangements and the use of email or notice boards, meeting rooms etc.
  • There may also be local conditions of employment in policies and procedures which have been agreed or fixed locally – usually at local authority level and adopted by governing bodies or agreed at governing body level. These may add to the Burgundy Book either by improving on its provisions, for example, by offering more generous maternity leave arrangements, or by offering terms which are not covered by the Burgundy Book, such as time off for religious observance.
  • Finally, individual teachers may have particular arrangements which form part of their contract – such as job share or flexible working agreements.

It is vital that individual teachers have written evidence of their individual contractual terms, and that the Union group has a list of all collectively agreed terms as early in the transfer process as possible. You are encouraged to work closely with your members and division to compile this information.

As will be seen, when a school becomes an academy, or where an established academy transfers to an existing academy chain, the employees in the school transfer across to the new employer – the Academy Trust.

In some cases, the new employer may consider making changes to employee contracts and working arrangements in order to move away from the national provisions.The Union is very concerned to maintain as far as possible a national framework for teacher contracts, with national pay scales and national provisions on matters such as sickness and maternity benefits. We can use TUPE as a tool, in addition to our negotiating and bargaining arrangements, to try to defend those national provisions.

SECTION 1:TUPE OVERVIEW

INDIVIDUAL EMPLOYEE RIGHTS ON TRANSFER

The starting point of TUPE is that everyone who is employed immediately before the change of employer transfers automatically to the new employer if they so wish.There is no need for any employee to apply for their job within the academy or to apply to move across:it happens by operation of the TUPE Regulations themselves.Therefore,where a schoolbecomes an academy or a single academy joins an academy chain, or a free school is established upon the merger, take-over and/or closure of existing schools or services, all transferring teachers and support staff who are employed immediately before the transfer, will remain employed immediately after the transfer.

Any employee who does not wish to transfer to the new academy is free to resign, but will not have any rights to unfair dismissal or redundancy under TUPE. Some local authority employers may offer voluntary redundancy, severance or redeployment for those teachers who do not wish to work for an academy, but as the number of academies has increased, the opportunities for redeployment to a maintained school have reduced significantly.

It is important to note that TUPE only protects rights that already exist. It will not prevent an employer from deciding that a redundancy situation has arisen, or deciding to dismiss for a reason other than the transfer (e.g. for conduct or capability issues).

TUPE also provides that the contracts transfer.In fact, the employees’ contracts of employment are treated as if they had originally been made with the new employer.There is no need for new contracts to be issued.

In this way, the teachers who transfer from a maintained school to anacademy will remain employed on the terms of the STPCD, the Burgundy Book and any other terms which form part of their contracts (see ‘Teachers' Terms of Employment’ above).

TUPE also places limits on the power of the new employer to make changes to terms and conditions.This is explained further below in Section 2 under ‘Can the academy change any terms and conditions?’.

Changes can also be made to any non-contractual working conditions – please see Section 2 ‘Which working arrangements do not qualify as contractual terms?’

COLLECTIVE RIGHTS ON TRANSFER

As well as providing for individual employees' contractual rights to transfer to the new employer, TUPE requires the transfer of the Union’s collective rights to organise and negotiate on behalf of its members.These collective rights arise from the Union being recognised in relation to its members – i.e., it is entitled by law to rights to collective bargaining.

TUPE provides that both union recognition itself and the agreements that have been made between the union and the employer transfer.There will be ‘machinery’ by which consultation and negotiation takes place in your local authority and that will transfer to the new employer.Any other agreements that have been made, for example for time off for union duties, will also transfer.Unlike the individual employee contractual terms, these agreements are not usually legally enforceable but any changes to collective agreements, including facility time arrangements, must be the subject of negotiation between the employer and the recognised trade unions.

Under TUPE, before the date of transfer, the unions have a right to be informed about the transfer process itself, and to be consulted about any proposed changes to the working conditions that are ‘envisaged’ by either the old or new employer.

The Regulations place various duties on employers regarding the information that must be given and the way in which consultation must take place.

The two duties to inform and consult are separate and independent – even if no changes are anticipated, the existing employer still has a duty to provide specific categories of ‘information’ to the unions. The Employment Tribunals have clearly ruled that this duty does not depend on whether or not any changes are to be made.

More on ensuring information and consultation is set out below.

BEING INFORMED AND CONSULTED

The TUPE Regulations place duties on both the employer before a transfer to an academy (the transferor) and on the employer after a transfer (the transferee).Where duties have been breached, either or both transferor and transferee may be held to be responsible.

Some school representatives will be able to become more involved in the information and consultation process than others.It is important however for representatives to keep in touch with their division secretaries so that the Union can be aware of the school's plans and how these are progressed.In particular it is vital that school representatives maintain communication with their division secretaries on any proposed changes to working practices and terms and conditions of employment.

How much time should we have for the information and consultation process?

Regulation 13 states that information should be provided long enough before the transfer to enable consultation to take place.That is the case even if no changes to working conditions are envisaged as there must be sufficient time for the employer to consult voluntarily. This is why a local authority or other transferor employer must conduct consultation in good time before a transfer.

The NUT’s view is that, in order to allow meaningful consultation, employers should supply the information at the earliest opportunity.This will at the latest be immediately after the confirmation that the governing body intends to go ahead with the transfer – such as when it passes a resolution in favour of pursuing academy status or transferring to an academy chain (or in the case of a forced academy, once the academy order has been made).

Who should be involved in the process?

Regulation 13 provides that the employer should inform and consult recognised union representatives, by written notification to the Union’s head or ‘main’ office.The NUT has taken the view that this should be the division office, and where appropriate, the Regional Office. This view was endorsed by the employment tribunal in March 2012 where it was held that it was not sufficient to provide the information orally and it was a breach of the regulationto provide the information solely to the school representative, particularly as the NUT Regional Secretary had requested that the information be supplied to the division office and the regional office.In some cases it is the school representative who is initially informed of a proposed transfer.It is very important that school representatives contact their division as a matter of urgency when they receive any indication that their school might become an academy or a free school or that a transfer to an academy chain is being proposed.

Note that for TUPE transfers which take place on or after 31 July 2014, small employers with 10 or fewer employees are not required under TUPE to inform and consult where there is no trade union or employee representative. The employer must instead inform and consult each individual employee directly.

We do not envisage this situation arising often as the NUT will have been recognised by the former employer. However, it is important that the NUT maintains a presence in the workplace after a transfer. In smaller schools it might be appropriate to form an NUT school group consisting of all NUT members to ensure that members are not isolated and to remind the employer of the NUT’s presence.

Regulation 13 also stipulates that the TUPE consultation process must be undertaken with a view to seeking union agreement to the intended action or changes. In the course of the consultation the employer must consider any representations made by the union representatives, reply to those representations, and give reasons for any rejection of those representations.

Local authorities have often been helpful in providing information and facilitating consultation on proposed transfers.It is helpful if the consultation and provision of information can take the form of meetings with all relevant union representatives, as well as staff presentations.It is also helpful if both pre- and post-transfer employers can be involved.

What information must be given?

Regulation 13(2) of TUPE states that the following ‘information’ should be provided.

  • The date or proposed date of transfer and the rationale behind it.
  • Any legal, economic and social implications of the transfer.
  • Any measures (i.e., changes in working practices) which are ‘envisaged’ either by the employer pre-transfer, or the new academy employer post-transfer.If no measures are envisaged, the Union should be expressly informed of that fact.

The information is usually provided in a letter which employers often refer to as ‘measures’ letters.

What are ‘legal, economic and social implications’ of the transfer?

This covers the impact that the transfer will have on your future terms and conditions, pay, career prospects, pension arrangements and so on. The examples below are ‘implications’ that were successfully argued by the NUT in an employment tribunal which was endorsed by the Employment Appeal Tribunal in January 2013.

  • Teachers who are transferred to an academy and subsequently decide to return to work in a maintained school in the same borough or county, will lose continuity of service for the purpose of qualifying for certain statutory rights such as protection from unfair dismissal.The change in employer upon the subsequent move would break the teacher's continuous employment. He or she would have to accrue two years’ service with the new employer to be able to claim ordinary unfair dismissal. The statutory protection of continuous service for teachers who move from the employment of a governing body of a school maintained by a local authority to the employment of the same local authority or vice versa is lost upon the transfer.
  • Terms and conditions under the STPCD will have contractual force after the transfer but they will no longer be protected by statute.The legal implication is the change in the legal consequences of a breach – what would have amounted to a breach of statute before the transfer, amounts simply to a breach of contract after the transfer. See Section 2 for guidance on the impact on transferred teachers of future changes to the STPCD.
  • Once transferred to an academy, teachers’ terms and conditions and other non-contractual terms, would either no longer be, or only partly be, determined by national and/or collective agreements. This is not to say that the new employer is prevented in some way from bargaining on collective agreements post transfer. The true legal implication is that terms and conditions and other non-contractual terms post transfer will be subject to local bargaining rather than national collective bargaining. So, after the transfer, the academy or academy chain must negotiate with the recognised unions on teachers’ terms and conditions.
  • A further implication for teachers transferring to a new employer on or after 31 January 2014 is that thenew employer may renegotiate terms and conditions deriving from collective agreements one year after the TUPE transfer. The TUPE transfer will have legal implications for terms and conditions deriving from the Burgundy Book and those deriving from local agreements. This is explained in more detail in Section 2.

Which ‘measures’ should the Union be consulted about?