The primary aim for the creation of any academy is to drive school improvement. This will include ensuring that school managers, teachers and support staff provide the best learning environment for the students. As for any education setting, the staff are therefore integral.
Universities and further education colleges who become academy sponsors will need to be mindful of the staffing implications. The Transfer Regulations (TUPE), which will be familiar to most universities and colleges, provide a framework around which the staffing issues on the creation of an academy hang. For maintained schools converting to academies this means that the school staff will transfer automatically under TUPE from their local authority employer to the academy trust on the same terms and conditions of employment. Sponsors should ask themselves certain questions in relation to each new academy.
What particular terms of employment will you be inheriting? There are two types of nationally agreed core terms which apply to maintained school employees, the Burgundy Book which applies to teachers and the Green Book which applies to other local authority staff. Although there are similarities with common terms of employment for university and college staff, HE and FE institutions as academy sponsors will have to grapple with a different regime and additional regulation. Time invested in due diligence in relation to the transferring staff in advance of conversion will be time well spent.
What of pensions? For academy conversions this is relatively straightforward and for many sponsor institutions will be familiar territory. Academy trusts are scheme employers for TPS and LGPS. Membership of and contribution to these schemes will continue following conversion.
Will you be protected against staff claims inherited from the local authority? TUPE operates to transfer to academy trusts virtually all causes of action involving staff which arise while they were local authority employees. The DfE’s model documentation for conversions anticipates that local authorities will take responsibility for all pre-conversion staff liability. However, we are beginning to experience resistance from some local authorities to provide reasonable protection, particularly in relation to equal pay claims, which can be a very expensive liability.
Will you be able to change terms of employment and restructure? Although independence is regularly touted as a benefit for a school becoming an academy, the academy trust’s ability to change terms or restructure is fettered not just by the contractual and statutory rights of transferring employees but also by limitations under TUPE of effecting such changes. For many schools converting to become an academy the emphasis is less on implementing a change of staff and their conditions and more on performance. This is likely to be the biggest challenge for university and college sponsors of academy trusts in their quest for improved, sustained standards.