We wanted to take the opportunity to answer some frequently asked questions about academy conversion.
(i) Who is the employer of employees in a school with academy status?
The academy trust, which will usually be a charity, is the employer in academy schools. This is a different from a maintained school where employees are employed by the local authority.
(ii) What happens to contracts of employment when a school undergoes an academy conversion?
When a school converts to an academy most contracts of employment will transfer to the academy under legislation called the Transfer of Undertakings (Protection of employees) Regulations 2006 (TUPE). TUPE is intended to preserve employees’ contracts of employment and continuity of service despite the move from one employer (in this case the local authority) to another (the academy).
TUPE will apply so that all those employed immediately prior to the transfer, whether on fixed term or permanent contracts, will automatically become employees of the academy.
(iii) What happens to employees that are absent at the time of the academy conversion?
An employee’s absence from work at the time of the academy conversion, whether due to maternity leave, sickness absence or any other type of leave, will not affect their employment transferring to the academy in the same way as any other employee. It is important to ensure that these employees receive the same information about the transfer of their employment to the academy as those attending work prior to the transfer.
(iv) Can the school change contracts of employment after an academy conversion?
Academies are free to choose their own pay structure and terms and conditions for employees recruited after the transfer has taken place. It is up to the academy whether it wishes to continue to use the national agreements (contained in the Burgundy Book and the Green Book) or to implement their own terms and conditions. Our team can help you in implementing new contracts.
However, TUPE would prevent an academy using the transfer itself as a reason to make changes to terms and conditions for existing employees. They would only be permitted to make changes to existing contracts where they were unrelated to the transfer or where there was an economic technical or organisational reason for the change.
(v) What does a school need to do when converting to an academy?
TUPE requires an employer to inform and consult with representatives of employees that will be affected by the transfer prior to the transfer taking place. In practice this will involve making sure that employees and unions are aware of and are consulted about any changes that will affect them after conversion to an academy.
(vi) What if employees object to the transfer of their employment to the academy?
Employees have the option of objecting to the transfer of their employment from a local authority to an academy trust under TUPE. The effect of an employee objecting to the transfer would be that their employment would terminate on the transfer date. This would not amount to a dismissal meaning that the employee would not be entitled to a redundancy payment or be able to bring a claim for unfair dismissal.
If your school is considering converting to academy status or if you have already converted and would like advice regarding the issues above then please contact a member of our team for further information. For more information on the practicalities of converting to an academy (and the services we can offer to assist you with this) please click here.