FAQ - STAFFING ACADEMIES 1. Who employs staff within an Academy? Academies operate independently of the Local Authority in a similar way to Voluntary Aided and Foundation Schools. Frodo Baggins Academy are the new employer of staff working in their Academy and in such circumstances staff will no longer be an employee of Hull City Council (their existing community school status) but the Frodo Baggins Academy. Although academies have the legal status of independent schools, they are largely funded by the Department for Education (DfE). 2. What is TUPE? The Transfer of Undertakings (Protection of Employment) Regulations 2006. 3. What is the purpose of the Regulations? To protect the employment rights of employees when either a) the undertaking (a business or organisation) in which they are employed is transferred to another employer or b) they are part of an organised group dedicated to providing a service to a particular client, and it is decided that the service will in the future be provided by a different employer. Here we are concerned with the former rather than the latter. The Regulations are intended to safeguard employees rights when the business or organisation in which they are employed changes hands. 4. How are staff protected where the employer changes? The Regulations are based on European legislation which protects employees where businesses or organisations are transferred or sold to protect employee s continuity of service, contracts of employment and trade union recognition. The Government takes a positive view of the TUPE Regulations, and where an Academy replaces an existing school directly the TUPE regulations will apply to provide for employees to have a right to transfer to the new Academy. 5. Which staff will potentially transfer across to the Academy? Employees employed wholly or substantially in the school immediately prior to the transfer, automatically become the employees of the new employer. The date is +++++. 5.1 Staff on Fixed Term Contracts TUPE covers employees, whether part-time, temporary or fixed term, providing their employment does not come to an end before the transfer date. 6. How will the transfer affect your terms and conditions of employment? The TUPE Regulations protect pay and terms and conditions of transferred employees. Your present hours of work, rate of pay, annual leave entitlement, sick pay or maternity entitlement and other current conditions of employment will be preserved. Your contract of employment at the date of transfer will automatically transfer to the new employer. Hull NASUWT TUPE FAQs Nov 2014 Page 1 of 5
Your existing terms and conditions of employment will transfer with you to Frodo Baggins Academy. HR policies may be need to be amended to reflect the status of your new employer but no changes to terms and conditions will take place. A welcome letter will be sent detailing that your employment transferred to Frodo Baggins Academy but this will not change your conditions of service. 7. Can my pay, terms and conditions be changed by the new employer? One of the main effects of the regulations is that where there is a transfer of an undertaking, contracts of employment with the previous employer (Hull City Council Local Authority) transfer to the new employer Frodo Baggins Academy as if the contracts had been made with the new employer. The Academy is then obliged to observe all the obligations of Hull City Council owed to transferring employees. Contracts of employment of transferring employees cannot be terminated nor changed by reason of the transfer alone. Changes can only be made if they are justified for clear economic, technical or organisational reasons, known as ETOs. Yes, but Frodo Baggins Academy have no intention at this stage of changing your terms and conditions of employment. If this did happen the trade unions and you would be fully consulted in line with current practices and procedures. 7.1 Pay and conditions Teachers As academies have the status of independent schools, they can operate outside the School Teachers Pay and Conditions document (STPCD) and the National Conditions of Service for School Teachers, usually known as the Burgundy Book. The DfE states that it is the responsibility of the Academy to agree levels of the pay and conditions of service with its employees and to employ appropriate staff numbers, once the transfer has taken effect. Statutory Provisions: Professional Duties and Working Time Section 2(6) of the 1991 School Teachers Pay and Conditions Act states specifically that the statutory provisions on duties and working time set out in the Pay and Conditions Document take effect as terms of teachers contracts of employment. It follows that although the Academy may be taken outside the framework of the 1991 Act, the provisions of the Pay and Conditions document the applying will transfer with transferred teachers. Frodo Baggins Academy will follow the Schools Teachers Pay and Conditions and the Burgundy Book. 8. What will happen to my pension? The DfE policy states that all staff employed by Academies should automatically fall within the Teachers Pension Scheme or the Local Government Pension Scheme on the same basis. Hull NASUWT TUPE FAQs Nov 2014 Page 2 of 5
They will contribute to both Teachers and existing Local Government Pension Schemes. You will see no changes to your pension contributions or entitlements. 9. How will future pay be determined? Academies are like independent schools in that they are not bound by the School Teachers Pay and Conditions Document (STPCD) or by guidance on support staff pay and conditions issued by the National Joint Council for Local Government Services (NJC). Instead Academies and their staff are able to negotiate pay and conditions arrangements to meet the needs of the Academy and its pupils. The STPCD and NJC guidance may provide important starting points for Academies in determining their own arrangements. They will follow the Schools Teachers Pay and Conditions and the Burgundy Book. They will follow the support staff pay and conditions as issued by NJC. 10. What happens to my previous service? Under the TUPE regulations, continuity of employment is preserved and employees current period of continuous service will transfer to the new employer, in this case the SCRCAT. Statutory Provisions - In the event of an employee (teacher or support staff) applying for a post with a new employer, e.g another Academy, Community or Voluntary Aided School service will be aggregated for pension and redundancy purposes. Contractual Provisions (Teachers) - For teachers any contractual service e.g maternity, sickness, annual leave etc would not be recognised as this isn t covered by the Redundancy Payments (Continuity of Employment in Local Government etc) Modification Order 1999/2003/2010. It would be the discretion of each new employer to decide whether or not to accept continuity of service. Contractual Provisions (Support Staff) - For Support Staff due to a Local Authority being covered by the Redundancy Payments (Continuity of Employment in Local Government, etc.) (Modification) Order (Amendment) Order 2010, continuity of employment is protected and can also be used to calculate sickness and annual leave etc for support staff. Please Note none of the above apply in the event of a natural break:- Any break in your service that lasts for more than a complete week will constitute a break in your continuous service for all contractual and statutory entitlements. A week means a week ending with Saturday. Under the TUPE regulations, continuity of employment is preserved and employees current period of continuous service will transfer to the new employer. Similarly should a member of staff transfer from an Academy to a maintained school service will be aggregated for pension and redundancy purposes. Additional to this, due to a Local Authority being covered by the Redundancy Payments (Continuity of Employment in Local Government, etc.) (Modification) Order (Amendment) Order 2010, continuity of employment can also be used to calculate sickness and annual leave etc for support staff. They recognise your continuity of employment as described above. Hull NASUWT TUPE FAQs Nov 2014 Page 3 of 5
11. Do I have to transfer to the Academy? No. As part of the consultation process, individuals with concerns about the transfer will be given the opportunity to discuss their concerns and receive a response. Employees can object to the transfer of their employment but this will have the effect that they will be treated as if they have resigned their employment with effect from the transfer and therefore it is recommended that any employee considering objecting seeks advice form a trade union representative, solicitor or the Citizen s Advice Bureau. In Summary:- It should be noted that employees objecting to the transfer of their employment and whose employment terminates for that reason will be deemed to have resigned and not to have been dismissed, therefore your contract of employment with Hull City Council/School will cease from the 31 August 2013. As there will be no dismissal in law in such circumstances, individuals objecting to the transfer will not be entitled to claim unfair dismissal or receive a redundancy payment. 12. Can the new employer dismiss me because of the transfer? TUPE does not rule out the possibility of dismissal before or after the transfer, if there is an economic, technical or organisational reason entailing changes in the workforce. If such a reason is the cause of a dismissal it is capable of being a fair and justified reason for a dismissal and in this case, the usual redundancy procedure will apply. 13. Will the Trade Unions be consulted in relation to TUPE? Yes. The Local Authority (Hull City Council) and the School must inform all recognised independent trade unions of the transfer arrangements and consult them on any measures which the they intend to take before the transfer. 14. Will the Trade Unions be recognised by the Academy? Where there is an existing school and TUPE applies, any trade union recognition agreements applying to transferring staff will also transfer as do any collective agreements in force at the time of transfer. They will work with the trade unions within Hull whom you are currently familiar with. A list of recognised trade unions representatives are attached to this sheet. 15. What Information is transferred over to the Academy from a staffing perspective? Under the Transfer of Undertakings (Protection of Employment) Regulations 2006, Regulation 11 - the local authority and the governing body must provide the academy with the following information:- a) A schedule of staff employed to work wholly or substantially at the Academy including Personal Details, Employment Particulars, Pay/Performance, pensions, leave b) Details of any active disciplinary/capability or grievance proceedings concluded within 2 years of the date of notification c) Details of any active or potential legal proceedings between the individual and the Authority Hull NASUWT TUPE FAQs Nov 2014 Page 4 of 5
d) Personal files including copy of individual written statements of particulars of employment e) Sickness and absence records for the immediately preceding 2 year period f) Payroll and pension records g) Policies and procedures adopted by the school which form part of the contract of employment including:- a) School Teachers Pay and Conditions Document;, The Conditions of Service for School teachers in England and Wales (the Burgundy Book) Support staff - National Joint Council for Local Government Services (Green Book). 16. What happens to new staff employed after the Academy has been started? TUPE does not safeguard rights for new recruits appointed to posts in the Academy. It is a protection only for transferring employees. In the event of you having any further questions please do not hesitate to contact any of the following: Sharon Herrick (HR Account Manager Schools) 616604 sharon.herrick@hullcc.gov.uk Lynsey Cook (HR Adviser (Schools) 616600 lynsey.cook@hullcc.gov.uk Alternatively, you may contact your individual Trade Union as shown below:- Adrian JOICE, (NASUWT) hullsec@nasuwt.net Hull NASUWT 7 Scotts Garth Drive, Office: 01964 501956 (also out of office hours) Tickton, Mobile 07966 231 855 BEVERLEY, HU17 9RR NASUWT Member Support Advice Service 03330145550 As part of the NASUWT s commitment to members to deliver the highest quality of service, we operate the Member Support Advice (MSA) Service from 8.00am to 6.30pm on weekdays. The MSA service deals with all requests from members for information, advice and support. Assistance is literally only one phone call away. This number is free from all landlines and mobile phone with inclusive minute call packages. It may be easier for busy teachers to email their queries and so there is also an email address: advice@mail.nasuwt.org.uk For out of office hours support, please continue to contact Hull NASUWT as usual. Hull NASUWT TUPE FAQs Nov 2014 Page 5 of 5