Calculating Continuous Service in Surrey Schools

Transcription

1 RELEVANCE KEY: Guidance Calculating Continuous Service in Surrey Schools Maintained Schools Academies Independent Schools x Non-Maintained Special Schools x 6 th Form Colleges Pupil Referral Units Directly relevant Some relevance x Not relevant 1. Why is the calculation of continuous service important? To qualify for a number of statutory employment rights, an individual must have been employed continuously for certain minimum periods. The written statement of particulars which must be provided to all employees working for at least one month has to specify the date on which continuous employment began. Usually the period of continuous employment begins on the date that an employee starts work with a particular organisation and ends when he/she subsequently leaves that employment (and such will be the case in private, independent schools and colleges) but there are numerous rules and exceptions which mean that this position is not always that straightforward in practice. There are particular rules governing the calculation of continuous service between publiclyfunded education establishments and certain other organisations, for example, depending on the status of the organisations in question, which are covered in more detail in this guidance document. In schools and colleges, continuous service is relevant for three main purposes: 1. Ascertaining statutory rights (this governs areas such as statutory minimum notice periods, entitlement to statutory maternity pay and qualifying periods for employment claims such as unfair dismissal); 2. Ascertaining rights to redundancy pay; 3. Ascertaining entitlement to certain conditions of service, such as sick pay and occupational maternity pay. In practice, for any given employee these three dates could be the same or they could be different because there are separate rules underpinning how the dates are calculated. Part A: Statutory Rights & Continuous Service 2. Continuous service between maintained schools in the same local authority Under special rules for continuity of employment contained within the Employment Rights Act 1996 (s. 218(7)), an employee who moves between employment by: the local authority (i.e. employment either in a local authority service or in a community or voluntary controlled school) and employment by the governing body of a school maintained by the same local authority (i.e. a foundation or voluntary aided school in the same LA) will have their continuity of service preserved for statutory purposes provided there is no gap in employment (see s. 4 below for what constitutes a gap in employment). This special rule does not CALCULATING CONTINUOUS SERVICE IN SCHOOLS AND COLLEGES: LAST UPDATED JANUARY 2018 DOC REF:NE/SUR/14 1

2 apply when an employee moves between employment by two separate governing bodies (e.g. employee moves from one foundation school to a voluntary aided school) or when the individual moves to a different local authority school (e.g. moves from a community school in one local authority to a community school in another local authority). The position is summarised in the table below: Original employer New employer (must be within the same local authority) Continuous service recognised for statutory purposes? (assuming no gap in employment) Local authority department/service Community/voluntary controlled school Local authority department/service Foundation/voluntary aided school Community/voluntary controlled school Community/voluntary controlled school Community/voluntary controlled school Foundation/voluntary aided school Foundation/voluntary aided school Community/voluntary controlled school Foundation/voluntary aided school Foundation/voluntary aided school Remember that employees of community and voluntary controlled schools are employed by the local authority and not the school itself. This means that an employee moving from one community school to another (within the same local authority) is not actually changing employer at all. 3. Continuous service between maintained schools and academies (or other independent schools/colleges, such as non-maintained special schools) Academies are effectively independent schools, albeit funded by the Department for Education. As such they are standalone employers and there are no special rules for continuity of employment when staff move between academies, as there are for maintained schools. Therefore any employee who moves from a maintained school to an academy, or vice versa, or between one academy and another academy (unless within the same multi-academy trust) will break their continuous service for statutory purposes, even if there is no gap in employment. The only exception to this is where there is a TUPE transfer of staff (this usually occurs when a maintained school converts to academy status) where service is automatically treated as continuous in respect of those staff who transfer their employment from the maintained school to the academy. However, any member of staff who transfers to an academy in this way but subsequently leaves the academy to start work at another school or college will break their continuity of employment, regardless of the status of the new employer, unless the new school/college is part of the same multiacademy trust (and thus the employer has not actually changed). 4. What constitutes a gap in employment for statutory purposes? A period of continuous employment is calculated on a week by week basis (a week being Sunday to Saturday for these purposes). It usually follows, therefore, that if there is a break of at least a week (running Sunday to Saturday) then continuity of employment will be broken. Bear in mind that because of the Sunday to Saturday rule a gap of one calendar week may not break continuity. 2

3 Example: an employee leaves her employment at a community school on Monday. She commences work at another community school in the same local authority on the Friday of the following week (i.e. there is a gap of 10 days here). Her service will however be continuous because there has been no gap of a full week running Sunday to Saturday: she has worked in both weeks. Although a week s gap, as defined above, will usually break continuity of employment there are exceptions to this general rule in law in which a gap between two periods of employment will not break the period of continuous service: Exception Re-engagement following dismissal/resignation on grounds of ill health Temporary cessation of work Where the employee is regarded as continuing in the employer s employment for any purpose by arrangement or custom Where a dismissed employee is reinstated or re-employed Details If an employee is re-engaged by the same employer within 26 weeks of the employee leaving, employment is treated as continuous (Employment Rights Act 1996, s. 212(3)(a)). Where an employee does not attend work for a period of time because the work has temporarily ceased this may be counted towards continuous service (Employment Rights Act 1996 s.212(3)(b)): examples would include where there is a temporary cessation of work because of school/college closure periods. This is similar to the above and may occur when an employee is away from work for a particular reason and the employer has treated the employment as continuous (Employment Rights Act 1996 s.212(3)(c)). An example might be an extended period of unpaid leave or a sabbatical during which time the individual was deemed to remain employed. This could arise as the result of an employment tribunal, for example, or as part of a settlement agreement or ACAS COT3 agreement. 5. Can an employer and employee agree a different continuous service date for statutory purposes? No. It is important to note that continuity of employment for statutory purposes is a statutory construct. This means that, in the event of a challenge, it will be for an employment tribunal to determine what the period of continuous service is: it is not open to an employer and employee to agree a different date or to agree that a gap constitutes a break in service when the law suggests otherwise. If an employer re-engages a teacher after a one-day gap in employment, for example, there will be no break in service for statutory purposes even if the teacher has agreed to there being one. Part B: Redundancy & the Modification Order 6. Why are redundancy rights different to other statutory rights? Usually an employee s entitlement to redundancy pay is calculated based on his/her period of continuous service (calculated in the same way as for other statutory purposes, detailed in Part A). Statutory redundancy pay is only payable to an individual with at least 2 years continuous service. 3

4 Under the Employment Rights Act 1996 (ERA) an employee can count service with an associated employer towards the service requirement for a redundancy payment. Under the ERA, however, local government employers are not associated : this is where the Modification Order comes in (or, to give it its full title, the Redundancy Payments (Continuity of Employment in Local Government etc.) (Modification) Order 1999). The effect of the Modification Order is to make local authorities, and certain other bodies (essentially linked to local government in some way), associated employers for the purposes of the redundancy provisions of the ERA. This allows employees to include all continuous service with Modification Order bodies in the event that one of these bodies makes them redundant. As well as local authorities, all maintained schools and academies are Modification Order bodies, as are FE colleges that were previously LA-funded, which means that continuous employment across these organisations (and across local authorities) will count for redundancy pay purposes, even where the same service does not count for other statutory purposes. 7. What bodies are on the Modification Order? New bodies are added to the Modification Order over time and there is no static list of all the bodies included. Many bodies are described by category rather than specific organisation (community schools are all grouped together, for example, rather than individual schools being listed). A few bodies are specifically named. Broadly speaking, Modification Order bodies sit within the family of local government or are ex-local government. Unless, however, an employee has come from another school or local authority it is not always easy to establish whether a body is on the Order or not. One way of resolving this issue is to contact the body in question as they should know whether or not they are on the Order (because they will need to apply the same provisions to new employees joining them). You can also seek advice from us or your alternative HR provider. The Local Government Association has produced a very useful guidance list on some of the bodies that commonly cause difficulties in interpretation. This is reproduced below. Body/Category Police officers and support staff Information Police officers are not covered by the Order because they are independent office holders and therefore not employees. Support staff are covered as they are employees. It used to be the case that support staff in the Metropolitan police were not covered by the Order, as they were employed by the Secretary of State. However, the Metropolitan Police Authority was placed on the Order after it was established in July Housing Universities Further education colleges The Civil Service Audit Commission Housing Associations are not on the Order but Housing Action Trusts are. Where authorities have transferred their housing stock to an Arms' Length Management Organisation (ALMO) it is the government s advice that such an organisation is covered by the Modification Order (under paragraph 6 of Schedule 1). The basic rule is that universities which used to be polytechnics are included whereas those that were always universities are not, for example, Leeds Metropolitan University (formerly Leeds Polytechnic) is covered but Leeds University is not.* Colleges which were funded by the local authority before 1992 are included whereas those which have always been independent are not. Central government bodies are not included. The Audit Commission is not on the Order. 4

5 The NHS NHS bodies are not included, except for Care Trusts set up under s45 of the Health and Social Care Act Care Trusts are different from Primary Care Trusts which were never included. Water authorities One of the generic categories of body included in the Modification Order covers bodies 'established by or under any enactment for the purpose of exercising the functions of' a local government authority. In West Midlands Residuary Body v Deebank 1990 ICR 349 it was argued that this covered a regional water authority which had taken over functions previously exercised by Birmingham City Council. The Court of Appeal held that 'functions' meant 'current functions' and therefore it did not apply to a body established to completely take over the functions of a local authority. Therefore, service with a water authority does not count towards continuous service. Town councils Geographical locations Training and Enterprise Councils (TECS) The category of parish councils also covers town councils. This is because a town council is simply a parish council that has resolved to have the status of a town. Generally speaking, English, Scottish and Welsh councils (including the Council of the Isles of Scilly) are covered but Northern Ireland, the Channel Islands and the Isle of Man are not. TECS are not on the Order. * The former polytechnics (i.e. those which are Modification Order bodies) are: Anglia Ruskin University Birmingham City University University of Brighton Bournemouth University University of Central Lancashire Coventry University University of East London University of Greenwich University of Glamorgan University of Hertfordshire University of Huddersfield Kingston University Leeds Metropolitan University Liverpool John Moores University London Metropolitan University Manchester Metropolitan University Middlesex University University of Northumbria Nottingham Trent University Oxford Brookes University University of Plymouth University of Portsmouth Sheffield Hallam University South Bank University Staffordshire University University of Sunderland Teesside University University of the West of England University of West London University of Westminster University of Wolverhampton 8. What counts as continuous service in the context of Modification Order service? In general terms the usual rules for calculating continuity of service apply (as discussed in section 4), meaning that a break of a full week, running Sunday to Saturday, will usually break continuity for redundancy pay purposes too. However, if an employee is made redundant and commences employment with a new Modification Order body within four weeks of the old employment ending there is no dismissal for redundancy purposes and continuity is not broken. This is on the assumption 5

6 that the offer of employment was made while the employee was still under notice of redundancy (i.e. before the redundancy dismissal took place). If you are employing an individual who you are aware was at risk of redundancy in his/her previous job (with another Modification Order body), you may wish to ascertain the circumstances with the previous employer (when notice of redundancy was issued, if at all, and whether a redundancy payment has been or will be made). The general rule is that an employee cannot receive the redundancy payment and retain his/her continuity of service for redundancy purposes: it must be one or the other. You may also wish to seek HR advice if you are unsure what the continuous service date will be in these circumstances. Part C: Service-Related Conditions of Service 9. In what way is continuous service relevant to ascertaining entitlement to certain conditions of service? Conditions of service in maintained schools (and also in a number of academies and some other independent settings) are generally tied to national or local collective agreements. These include the Burgundy Book in respect of teachers (the Red Book in sixth form colleges) and either the Green Book (NJC for Local Government Services) in respect of school support staff or, in some local authorities or settings, an alternative local set of terms. In Surrey, Surrey Pay includes the key conditions of service for most staff working for Surrey County Council (and, by extension, most of the staff within its maintained schools). These conditions of service generally recognise continuous employment with other employers (explained in more detail below as the schemes are not consistent with each other in their approach). Therefore, in establishing a new employee s entitlement to these conditions of service, it may be necessary to calculate his/her previous service in a different way to statutory or redundancy rights. Unlike with the latter two rights, however, this is an area where a school/college or local authority might exercise its discretion differently, i.e. to recognise previous service when it does not have to do so. 10. Teachers conditions of service Schools For the purposes of ascertaining entitlement to sick pay and maternity pay, the Burgundy Book (as supplemented in Surrey with local agreements) recognises all local authority service as a teacher. This technically only automatically includes service within community and voluntary controlled schools though in general local authorities (including Surrey County Council) tend to extend this to include other maintained schools as well. It does not, therefore, include any service outside local authorities (e.g. within academies) or any non-teaching service. The provisions for maternity leave are based on continuous service and the sick pay scheme is based on aggregated service (i.e. non-continuous). Scenario New teacher employed at a maintained school Continuous Service Position Within a maintained school it would be usual to recognise: a) all previous continuous service as a school teacher accrued in other maintained schools for the purposes of occupational maternity pay entitlement and b) all previous service in other maintained schools aggregated together for the purposes of sick pay entitlement. A maintained school would not, by default, count any service within an academy 6

7 for these purposes. Some local authorities have made a policy decision on behalf of maintained schools to recognise academy service for these purposes and therefore maintained schools should check with their LA what the policy is, if any (a foundation or VA school would retain its own discretion, regardless of the LA policy because the LA does not employ the staff). Surrey County Council has decided not to make a policy decision in this regard on behalf of community and VC schools within the LA area and therefore any decision to recognise academy service for sick pay or maternity pay purposes will be a locally-exercised discretion to be determined by the governing body. New teacher employed at an academy Academies are, of course, not bound by the terms of the Burgundy Book in respect of newly employed teachers but where the Burgundy Book continues to be recognised academies will still have to make a policy decision regarding recognition of service from other schools for the purposes of sick pay and maternity pay. Whilst this could be a discretionary decision to be made on a caseby-case basis, it would be helpful for the matter to be discussed and agreed by the board of governors so that there is at least some element of consistency, otherwise this could lead to accusations of unfairness and create administrative difficulties in managing different service dates for different purposes. In respect of both maintained schools and academies, any policy decision affecting recognition of service should be reflected in the written statement of particulars for the avoidance of doubt (a decision either to recognise or not recognise previous service). Some teachers with academy service, or joining an academy from a maintained school, may make assumptions that their service will be recognised and it is preferable that they fully understand the implications of accepting the new job at the point of agreeing terms rather than after they have joined. Sixth Form Colleges Under Red Book terms, previous continuous service with an organisation (or organisations) covered by the Redundancy Modification Order will be included in calculating entitlement to maternity pay and sickness allowance. 11. Support staff conditions of service Green Book conditions of service recognise previous continuous service with any of the bodies on the Modification Order for the purposes of entitlement to annual leave, the occupational sick pay scheme and the occupational maternity scheme. An equivalent scheme applies in sixth form colleges using national terms. A member of support staff joining a maintained school where Green Book or Surrey Pay terms are adopted will therefore have any previous Modification Order body service recognised for the purposes of calculating entitlement to these benefits (this will therefore include service with academies). To the extent that an academy continues to recognise one of these schemes, the academy will therefore also recognise continuous service which has been accrued in other academies and maintained schools (and any other Modification Order bodies) in exactly the same way for the purposes of these benefits. There are two exceptions under Green Book / Surrey Pay with regards to when breaks in service will be disregarded (NB sixth form colleges have different provisions): 7

8 Exception Transferring to outside contractor and then returning to service with a Modification Order body Breaks for caring responsibilities When the Exception Applies When a member of support staff is transferred under TUPE to an outside contractor which is not a Modification Order body (e.g. school-based cleaning staff transferring to commercial cleaning company), he/she may return voluntarily to local government service within five years and have his/her continuity of service recognised for the purposes of ascertaining entitlement to these benefits (i.e. annual leave, sick pay, maternity pay). This is provided the service is continuous and, where it is, it will include the service following the TUPE transfer. Note that this provision does not extend to continuous service for redundancy pay purposes (see Part 2 of this guidance for more information) which, in this case, would be broken. Under the terms of Green Book / Surrey Pay where an employee returns to work at a Modification Order body following a break for maternity reasons, or for reasons concerned with caring for children or other dependants, he/she will be entitled to have previous service taken into account in respect of the sickness and maternity schemes provided the break does not exceed eight years and provided no permanent paid full time employment has intervened. For annual leave purposes the break can be more than eight years provided no permanent full time employment has intervened. 8