Working in an academy

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Working in an academy Your guide from ATL - the education union

Legal advice series

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ATL is the union for education professionals across the UK. Active in the maintained, independent and post-16 sectors, we use our members’ experiences to influence education policy, and we work with government and employers to secure fair pay and working conditions. From early years to HE, teachers to support staff, lecturers to leaders, we support and represent our members throughout their career.

Not yet a member?

To be part of the union that puts education first, join ATL today. As a member you will have peace of mind knowing ATL offers first-class support, insurance protection, professional advice and representation, plus unrivalled publications, resources and continuing professional development (CPD) for your personal and professional development.

To join or check our competitive rates, including special offers for students and newly qualified members, visit www.atl.org.uk/join or call 0845 057 7000.* * Terms and conditions available online. Local rates apply.

Already a member? You’ve joined us, now join in and get on Getting involved with your union is the best way to achieve effective change, both in working conditions and in education. And it can enhance your professional development too. There are many ways to get involved, from giving your views on education policy to attending one of our training courses or becoming the ATL rep for your workplace. Look up www.atl.org.uk/getinvolved for more.

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Contents Related resources National chains

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02 Moving to or leaving an academy

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03 Contracts of employment

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01 Introduction

Written statement of particulars of employment Implied terms: the unwritten rules of a contract Directed time and working hours General tips Specific points to think about when considering a job offer Issues specific to support staff

04 Working part-time

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05 Pay and pensions

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TUPE transferred staff Your pay Threshold Written pay policy Term-time only contracts National academy chains Collective bargaining Individual pay negotiations Benchmarking against the maintained sector Pension provision

06 Appraisal Appraisal and its link with capability Lesson observations

07 Sick pay and leave Verification of illness Statutory sick pay

08 Maternity and other family rights

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Your statutory rights Pregnancy and health and safety

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09 ATL model policies for academies

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10 TUPE and continuity of service

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TUPE regulations What TUPE means in practice

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Dismissals Conditions of service Continuity of service Collective agreements Trade union recognition Conclusion

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11 NQT induction in academies

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12 Redundancy

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What is redundancy?

Redundancy procedure Consultation Notice of redundancy Unfair selection criteria Fixed-term contracts Avoiding redundancy Help in finding another job Challenging a redundancy decision Redundancy pay Notice pay Redundancy pay and new employment

13 Organising: the importance of working together The importance of the ATL academy rep The role of the ATL rep

14 Trade union recognition What do we mean by ‘recognition’?

TUC model recognition agreement for academies Does my school recognise ATL? The academy joint consultative and negotiating committee Recognition in academy chains and federations If my school doesn’t recognise ATL, what can I do?

15 Other sources of information ATL departments How to join Out-of-hours helpline Other useful organisations

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Introduction This handbook is a guide for ATL members who work in an academy and is a resource for ATL school reps, branch secretaries and regional officials.

The guide addresses the main issues and difficulties that might be encountered when working in an academy and it has been written to provide general guidance; it is not a complete or authoritative statement of the law. For all individual employment issues, you should seek advice from ATL.

terms and conditions; this handbook aims to provide practical assistance to help members achieve this. ATL also provides other resources to support members working in academy schools, including regular updates such as e-bulletins, advice and training for reps in academies, and networking opportunities for members and reps to exchange best practice and information.

Related resources

Several groups sponsor more than one academy. These chains are often represented at national level by ATL. ATL is presently represented nationally at the following academy chains: ● AET ● ARK ● E-ACT ● Harris ● Kemnal Academies Trust (TKAT) ● Oasis ● Ormiston ● United Learning ● Woodard.

Any nationally agreed policies for these academies can be found on ATL’s website at www.atl.org.uk/academies.

If you are working in a school that is considering conversion to academy status, ATL provides a range of resources based on its policy to oppose conversion on the following grounds: ● that the case that academies improve educational standards remains unproven ● that they undermine local democratic accountability of schools ● that they undermine our nationally negotiated framework of staff terms and conditions.

ATL’s position statement sets out this policy in more detail, and can be found on our website alongside a full range of resources designed to assist members when campaigning against the conversion of their school to an academy, including our academy toolkit which provides model letters to parents and governors, and an FAQ; all can be found at www.atl.org.uk/academiescampaign.

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National chains

Once a school has converted to academy status, ATL’s priority is to ensure members continue to benefit from the protection afforded by union-negotiated

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Moving to or leaving an academy

If your school converts to an academy then your existing terms and conditions should be protected (see chapter 10, TUPE and continuity of service).

However, taking up or leaving a post in an academy is not the same as moving between maintained schools and there are important things to consider.

Academies are free to offer a wide range of terms and conditions to new staff.

Although there are often similarities with maintained sector terms and conditions, take nothing for granted when you accept a new job at an academy.

In brief, the three main issues to consider are as follows. ● Pay in academies is not required to follow the national pay scales for teachers. You should check your starting salary and the mechanism for progression. When returning to the maintained sector, experience you gained while working in an academy may not automatically count for progression on the national pay scale. ● Academies are independent employers and do not have to recognise your previous service in the maintained sector or in other academies.

Continuity of service is particularly important for establishing your entitlement to sick leave, maternity benefits and redundancy. You should check with your new academy what your entitlements are and how long you have to work with them to attain these benefits. If you return to the maintained sector or move to another academy your previous service may not count. Some local authorities (LAs) have local agreements to recognise service with academies in their area.

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Academies have the power to change the length of the school day and school term dates. You should check with your employer before taking up a post when you are expected to be in school. You should also check if there are additional duties or responsibilities expected of you.

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Contracts of employment A contract of employment covers the main terms and conditions of employment. It can be a very lengthy document or a short summary, often supplemented by additional policies, which may be contained in an appendix to the contract or in a staff handbook.

If something is contractual then it is binding on both parties and cannot be altered without the agreement of both parties.

What was agreed at interview or confirmed in a letter of appointment can be contractually binding. Of course, it is always preferable to have a written contract to avoid unnecessary disputes and to ensure that both parties are clear how certain situations should be managed.

It is also good practice (but not a legal requirement) to have a job description.

Written statement of particulars of employment Under the Employment Rights Act 1996, employees have the right to a written statement of particulars of their employment. The statement must be given to the employee in a single document no later than two months after their employment begins and must include: ● the names of the employer and the employee ● the date on which employment started and the date on which the period of continuous employment began ● the scale and rate of remuneration,

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pay intervals and the method of calculating pay terms and conditions relating to hours of work and holiday entitlement (including public holidays) the job title or description the employee’s place of work.

However, the following employment particulars can be documented by instalments: ● whether employment is permanent or for a fixed term ● details of sickness, pension arrangements and notice ● details of the employer’s disciplinary and grievance procedures ● details of collective agreements affecting employment ● details of any requirements regarding work outside of the UK. If you are considering requesting a statement of your main terms and conditions from your employer, then we would recommend that you first seek advice from ATL. This may be an issue that affects all your colleagues.

Implied terms: the unwritten rules of a contract There are terms that are not usually spelt out in a contract of employment but which the law considers to be central to any employer-employee relationship.

These are called implied terms and are separate duties that are placed on both employer and employee. The duties of employers are as follows: ● To take reasonable care of the safety

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of employees by providing a safe system of work, as well as a healthy and safe workplace. In so doing, the employer must take reasonable precautionary measures to safeguard both the physical and mental health of employees.

To provide a suitable working environment. Employers should take reasonable steps to ensure that employees are able to carry out their work in tolerable conditions.

Not to act in a manner calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence which should exist between employer and employee.

This can take many forms, for example, subjecting an employee to persistent undermining and humiliating treatment. Where this occurs, an employee who has worked for the employer for at least one year (two years if the employment started after 6 April 2012) is entitled to resign and present a claim to an employment tribunal for constructive dismissal on the grounds that the employer’s actions or lack of them amount to a fundamental breach of contract. To claim constructive dismissal you must leave your job. You should not take this step without advice from ATL. To provide reasonable support. An employer should take appropriate steps to ensure that an employee is able to work without harassment or disruption from colleagues.

To provide a procedure to deal with employees’ grievances reasonably and promptly, which must also take proper account of the statutory grievance procedure.

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To pay agreed wages and provide work. The payment of wages is usually provided for in the written contract.

As regards the provision of work, an employee who is given insufficient work to do is unlikely to be able to complain if she/he is being paid in full.

However, where earnings depend on the provision of work by the employer, there may well be an implied obligation to provide work.

The duties of an employee are as follows: ● Fidelity: employees should serve their employers faithfully and not act against the interests of their employers. Some employers view criticism of them to be in breach of this duty and might even include an explicit provision in the contract to cover this. ● To obey lawful and reasonable instructions; the engaging of an employee to work under the direction of the employer is the essence of an employer-employee relationship.

However, the instructions should be lawful and consistent with the employee’s contractual duties. The employee is not obliged to obey an instruction to do something which is either unlawful or would put his or her safety in danger. ● To exercise reasonable care and skill.

This duty governs the quality of the employee’s work.

These implied terms are as much a part of the contractual relationship between an employer and employee as written terms. Consequently, it is incumbent on both parties to have regard to their respective duties if a harmonious and productive working relationship is to be maintained.

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Directed time and working hours Your working hours will be defined in your contract of employment and will usually be set. You should ensure that you fully understand any additional requirements which may be made such as attendance at evening or weekend events.

Maintained sector classroom teachers can only be directed to work for 1,265 hours per year over 195 days.

Teachers cannot be required to work on weekends or bank holidays unless specifically stated in their contract.

These limits will not necessarily apply in academies so you will need to be clear at the outset what your working hours will be.

before you accept a job? Ask for a copy of the contract of employment and all relevant supplementary documents (such as the staff handbook) before you formally accept the post.

Don’t be afraid of appearing pushy by asking questions. Taking a new job is a major commitment. However, a commonsense approach should be taken, as asking a string of questions about benefits may create the wrong impression.

The ability to provide you with a contract on request and to answer your questions openly says a lot about a school and its management. Read the contract carefully.

If there is anything not covered or which you do not understand, raise it with your school. Ask ATL to check a new contract if you have any concerns about it.

For support staff, the standard working week for full-time support staff in the maintained sector is usually 37 hours (35 or 36 in some London boroughs). In the maintained sector, there is no requirement to work above these hours; if you are asked to work overtime then you should be paid for it. The rate of overtime should depend on whether you are working on weekdays, Saturdays, Sundays, public holidays or overnight. ATL believes that similar principles should apply in academies.

If you are asked to accept a job without sight of the contract, then one option is to accept the post conditionally, upon agreeing the terms and conditions, or to accept subject to contract. However, if you accept a post conditionally, the school in turn might be able to withdraw the offer without being in breach of contract.

General tips

Never assume that the school offers a particular term or condition. If something is important to you, make sure you ask about it. If you do start a job and have

So, how can you make sure you know what you are signing up to

Keep a note of what was said at interview and in conversations afterwards and keep offer letters and relevant documents (including the advertisement for the post).

They could be significant in any subsequent dispute.

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received nothing more than a letter of appointment, you are entitled to receive a statement of your main terms and conditions within two months of starting (see page 5).

Ask ATL for advice. If things are not quite as you expected, always raise your concerns promptly with your headteacher, bursar or manager.

Specific points to think about when considering a job offer Academies have the freedom to offer a range of terms and conditions to new staff. So how can you make sure you know what you are signing up to before you accept?

1. Job title Make sure you are clear about your job title and major responsibilities (especially those that attract extra pay).

2. Job description The devil is in the detail. For example, most academies offer extra-curricular activities (and school trips) and expect teachers to do their bit.

3. Pay Don’t be satisfied with general statements about pay. Ask for a copy of the salary and allowances scales and establish how you will progress up it, when pay is reviewed and how.

4. Hours of work Establish at interview your normal

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working day and week, especially if you are expected to work at weekends.

5. Holidays How many days can you be asked to work outside term dates? If you are employed on a term-time only contract, check how your statutory holiday entitlement has been incorporated into your pay.

6. Probationary periods Trial periods of one term are normally sufficient. Ensure you understand how long your probation will last, what the review arrangements are and the support and induction you can expect from managers and colleagues.

7. Notice periods Check how much notice you are entitled to receive and obliged to give.

For support staff, notice periods vary but commonly it is one month. It is important to note that contractual notice may be supplemented by your statutory entitlements. If your employer wishes to dismiss you after one month’s service, then by law they must give you a minimum of one week’s notice for every year worked, to a maximum of 12 years.

For example, if you have worked for your employer for 15 years and your contract of employment gives a notice period of one month, then by law, your employer would have to give you 12 weeks’ notice if they were seeking to dismiss you.

8. Maternity pay and leave The key question is whether your employer pays statutory maternity pay (SMP) only, or higher rates under a more beneficial scheme. Ideally, academies

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should offer the same, or better, provisions than in the maintained sector.

9. Sick pay and leave This is worth checking, especially the entitlement in the first few years of employment. Academies do not have to honour the entitlement to sick leave that you have built up in the maintained sector or with other academies (unless you have transferred under the Transfer of Undertakings (Protection of Employment) [TUPE] Regulations). Check the arrangements for sick leave and pay.

Likewise, if you move from an academy to a maintained school or another academy, the service in your current academy may not count towards your sick pay entitlement. ATL’s factsheet entitled, Leaving an Academy and Continuous Service has more detail.

10. Pension Academies are members of the Teachers’ Pension Scheme (TPS) and Local Government Pension Scheme (LGPS) and must offer access to these schemes for all employees.

the academy’s ethos or character which may depend on the sponsor of the school.

Checklist of issues to consider about a new job: ● Is there a job description and am I content with it? ● What is the job profile? ● What is the starting pay? ● Is there a pay scale and how do I progress up it? ● When is my pay reviewed? ● What are my normal working hours? ● What extra-curricular activities are expected of me? ● What are the pension arrangements? ● What is the sickness policy and my sick pay entitlement? ● What is the maternity policy? ● Is there a redundancy policy? ● Have I been given a copy of the staff handbook?

Issues specific to support staff

11. Retirement age Under the Employment Equality (Age) Regulations 2006 it is unlawful to dismiss staff who are aged 65 or over unless this can be objectively justified. ATL does not envisage circumstances where this may occur.

There are often particular problems with the contracts of support staff, who are regularly employed on term-time only contracts. Your pay should include holiday pay. From 1 October 2008 all employees were entitled to a minimum 28 days’ paid annual leave (with a pro-rata entitlement for part-time staff).

12. Research the school Researching an employer is important in applying for any job. In addition to obtaining the school prospectus, it is advisable to research the academy’s website. Ensure that you are happy with

Another issue for support staff is that their roles frequently evolve and they may be asked to take on extra responsibilities.

It is therefore even more important that your job description or role profile adequately reflect the tasks and

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responsibilities expected of you. If you have concerns that this is not the case then the matter should be raised with your employer. This can be done via your appraisal or job evaluation scheme (if applicable), or, as a last resort, through the grievance procedure. It is obviously important to address such issues at the earliest possible stage. For instance, if you are taking on more duties and responsibilities, say in May, which are not acknowledged in your pay or grade, then you would not want to wait until September, if that is when you have your annual appraisal.

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Working part-time Part-time teachers and support staff make an important contribution to academies. Working part-time has advantages for the school and for the employee, and ATL supports this flexibility and the possibility of choice.

Unfortunately, part-time workers can be vulnerable to exploitation. Employers may view part-time staff as a flexible resource for the benefit of the school without recognising that they have the same rights and security of employment as full-time employees.

The Part-time Workers’ (Prevention of Less Favourable Treatment) Regulations 2000 state that part-time workers have the right not to be treated less favourably by an employer when compared to full-time workers with regards to the terms of their contracts of employment unless that treatment can be objectively justified. ‘Terms’ includes salary, holiday entitlement, rate of sick pay or maternity pay, access to pension schemes or training schemes, and the criteria used to select jobs for redundancy.

Ideally, a part-time contract should have set, specified hours of work and identify the days that the work should be undertaken. Your contract should state the percentage of time you are expected to work in relation to a full-time employee at the school. Having set hours does not rule out the flexibility of varying your hours, providing both parties are in agreement, but what it does rule out is your employer unilaterally changing your hours without such agreement.

If you are a part-time teacher, it is unreasonable for the contract to stipulate

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that you are required to obtain permission from the headteacher to engage in any outside activity, especially if it is to take place on days when you are not contracted to work for the school.

For clarity’s sake, ATL would recommend the following should be included in your contract: ● ‘For the avoidance of doubt the teacher shall not be required to abstain from any outside activity which does not prevent the teacher from fulfilling his/her duties.’

A part-time teacher might particularly want to include this provision where there is a variable hours clause in his/her contract of employment as the teacher might in the future need to seek additional employment elsewhere to make up his/her hours. ATL would consider it unreasonable for part-time support staff to have a prohibition against taking other employment, unless there was an apparent conflict of interest with their main employment.

In the maintained sector part-time teachers are required to attend for additional duties such as training days, staff meetings or parents’ evenings, if they fall on a day when they normally work. Account should be taken of such additional duties when allocating a teacher’s directed time. Where this is not practical then provision should be made for the member of staff to be paid for the additional time worked beyond normal hours.

If you think that you are being unfavourably treated because you work part time, we recommend that you discuss the matter with ATL.

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Pay and pensions

Academies have greater freedom to set their own terms and conditions of employment. This means that pay and other remuneration can vary widely from academy to academy and indeed, in some cases, from employee to employee within the same academy.

TUPE transferred staff If you joined the academy when it first converted from a maintained school you should have been subject to a TUPE transfer. For teachers, this means that your pay at your maintained school still applies to you and will be as detailed in the School Teachers’ Pay and Conditions Document (STPCD), available from ATL’s website at www.atl.org.uk.

Whilst you remain covered by the TUPE transfer arrangements you will, for example, receive the same annual progression and pay increment as teachers in the maintained sector.

There are no national pay arrangements for support staff. If you were TUPE transferred to the academy then your previous salary at the school will be honoured.

If you have been TUPE transferred to an academy then you may also wish to read ATL’s factsheets, Transfers of Undertakings – a Concise Introduction and Leaving an Academy and Continuous Service, which can be found at www.atl.org.uk/academies.

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Your pay There are three basic things that you need to know about salary: 1. What salary you will start on?

2. What is the academy’s pay scale and how do you progress up it?

3. Is there an annual cost of living increase?

Your level of pay will usually be agreed on appointment but how does it increase after that? This will usually be determined by your individual contract of employment and any supplementary documents, such as the academy’s pay policy. The level of your starting salary is obviously important, but just as important is a pay scale and knowing how you will progress up that scale.

It cannot always be taken for granted that your salary will be increased each year to take account of inflation. Again, this provision needs to be in the contract.

For example, the school may give contractual guarantees that pay will rise each year by no less than the maintained sector percentage pay award, or be linked to the Retail or Consumer Price Index.

Threshold Since 2000, maintained school teachers at the top of the main pay spine have been able to apply to ‘cross the threshold’ onto the upper pay spine.

Progression is based on the outcome of a teacher’s annual appraisal. Once a teacher is paid on the upper pay scale they must be paid at this level when they move to another maintained school.

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As academies do not have to follow the statutory pay framework of the maintained sector some academies may not offer the threshold or similar. This could be disadvantageous to you should you return to the maintained sector.

The STPCD does allow for teachers who work in academies and have at least five years of employment and have been successfully assessed against the maintained sector post-threshold standards to be treated as a postthreshold teacher should they return to the maintained sector.

If you have not yet crossed the threshold then you may wish to ensure that the academy is willing to assess you against the post-threshold standards.

Written pay policy ATL recommends that every academy has a written pay policy. It should be clear, comprehensive and applied fairly and consistently. Ideally, the policy should be a contractual document.

Among other things, it should include: ● the pay scales used by the school ● the annual pay review date ● the rules for increments ● the criteria for performance pay (if used) ● the criteria for extra pay, such as responsibility allowances ● how salaries for part-time staff are calculated ● any procedure you need to follow before your pay is reviewed, and an appeal process if you are not content with the outcome of the review ● the staffing structure within the

academy, clearly showing any allowances applicable to posts.

Term-time only contracts Some staff, particularly support staff, may be paid on term-time only contracts.

Academies tend to use broadly similar formulas to calculate salaries which take into account the proportion of full-time hours worked as well as the term-time only aspect. The salary is usually divided by 12 and paid in equal monthly instalments throughout the year to ensure that the employee receives regular payments. In essence, a term-time only contract means that an employee is only employed when the school is open - in most cases for 39 weeks a year.

Employees on term-time only contracts are entitled to paid leave, and this entitlement is usually added on to the weeks worked to establish the overall salary. By law, full-time staff are entitled to a minimum of 28 days of paid annual leave per year, inclusive of bank holidays.

Part-time staff are entitled to the same minimum of paid leave, but on a pro-rata basis.

For example, a school which is open for 39 weeks and provides a leave entitlement of five weeks would employ you for a total of 44 weeks in a year.

This would be worked out in salary terms as a proportion of the number of weeks in the year. The annual salary would therefore be 44/52ths of the full-time salary for the post.

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One common problem with term-time only posts is that the salary is often advertised at the full 52-week rate.

The successful applicant then has a nasty surprise when the actual salary is revealed. This emphasises the importance of looking carefully at the details of a post at all stages of the process when applying for a position.

This means that staff, via their recognised unions, have the right to negotiate changes to pay and conditions with the academy. The only exceptions to this are newly-created schools (whether academies or free schools) where union recognition will need to be agreed. Please see chapter 14 on trade union recognition for more information.

Term-time only contracts create a disparity in schools and ATL’s view is that academies should provide full-year contracts for all staff.

Union recognition gives the right of disclosure of relevant information, such as school income, salary costs and other relevant financial information.

Without this information, staff will be negotiating in the dark.

National academy chains In some of the academy chains, ATL negotiates pay and conditions at a national level. The agreements reached at these negotiations are binding on all academies within the chain. Currently ATL negotiates nationally with AET, ARK, E-ACT, Harris Federation, Kemnal Academies Trust (TKAT), Oasis, Ormiston, United Learning and the Woodard Academy Trust.

Details of the arrangements for these national academy chains, including recognition agreements and staff policies, can be found on ATL’s website at www.atl.org.uk.

Collective bargaining In those academies that are not part of a chain or federation, union recognition rights are transferred over to the new school under the TUPE regulations.

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For instance, without key financial information how can you properly test your employer’s negotiating position if it argues that it cannot afford to increase wages due to lack of money? Of course, financial difficulty is a reality for some schools and staff should take this into account when negotiating a pay rise.

This is part and parcel of a proper process of collective bargaining.

However, schools will always have competing priorities and increasing salaries may not be on top of their ‘wish list.’

Individual pay negotiations It may be possible to negotiate your own individual pay with the academy. It will depend on how much the academy wants you and what finances they have available. They may also be limited by the academy’s pay policy. Knowing your worth and researching what salary you might expect in another school obviously

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helps. For instance, with the current shortage, if you are a maths or science teacher, then you could be in a strong bargaining position.

undertake a significant responsibility that is not required of all classroom teachers may be eligible for a teaching and learning responsibility award.

Academies, like maintained schools, may be able to offer recruitment or retention payments or other benefits over and above their salary.

Headteachers, deputy and assistant headteachers are all members of the leadership group and are paid on a separate 43-point pay scale known as the leadership group pay spine.

Headteachers’ pay is normally related to the school group size, but governing bodies have the discretion to pay more where it is necessary to recruit and retain headteachers at the most challenging and largest of schools. Deputy and assistant headteachers are paid on a five-point range below that of the headteacher and above the pay of the highest paid classroom teacher.

Benchmarking against the maintained sector It can be useful to benchmark salaries in academies against those in the maintained sector. The pay scales for teachers in England and Wales are published by the Department for Education at www.education.gov.uk and are contained in the STPCD. They are also available from ATL’s website.

In addition, you should consider that teachers in the maintained sector can only be directed to work for up to 1,265 hours per year on 195 days (190 days with pupils and five additional days).

Teachers in the maintained sector cannot be directed to work on weekends unless their contract specifically states this.

These limits on working hours do not apply to members of the leadership group.

Classroom teachers can apply to ‘cross the threshold’ when they have reached the top of the main pay scale (usually after five years). This gives them access to a further three progression points on the upper pay scale.

Classroom teachers who are required to

Schools can make extra payments for teachers for recruitment and retention purposes for a fixed period, and decide the amounts paid themselves. Further information is available within the STPCD. Teachers responsible for special needs students may be eligible for a special education needs allowance.

Pension provision Academies must offer membership of the TPS to teaching staff and the LGPS to support staff. You should check your pay statement to ensure that your contributions are deducted from your salary each month.

Further information on the two schemes is available from ATL’s website at www.atl.org.uk.

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Appraisal

ATL welcomes well managed appraisal systems which are developmental and supportive.

Teachers and support staff should be able to have open and honest discussions with their line managers about their performance and receive appropriate guidance, training and mentoring. ATL’s guidance on appraisal can be found on its website at www.atl.org.uk/appraisal.

For maintained schools, teacher appraisal is governed by the Education (School Teachers’ Appraisal) (England) Regulations 2012. These regulations do not apply in academies although academies can adopt them if they wish. ATL’s view is that the appraisal system in academies should mirror as closely as possible the system implemented in maintained schools as this will ease transition. ATL has developed a model appraisal policy in conjunction with the NAHT and NUT; the model policy and guidance on using it can be found on ATL’s website at www.atl.org.uk/appraisal.

Appraisal and its link with capability The appraisal and capability policies should be kept as two distinct policies. Appraisal is a supportive and developmental process whereas capability is used to address serious concerns. ATL believes it is not appropriate to combine the two processes.

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Lesson observations ATL recognises that classroom observation is an integral part of ensuring that teachers meet the required standards for teaching and learning; however, observation in itself does not raise standards. Excessive observation is disruptive, demoralising and stressful. ATL believes that observations can be kept to a minimum by carefully planning their timing with the elements of teaching and learning to be observed to ensure that each observation is used for multiple management and developmental purposes.

ATL’s guidance on classroom observations can be found on ATL’s website at www.atl.org.uk/appraisals.

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Sick pay and leave ●

As an absolute bare minimum, all employees who qualify are entitled to statutory sick pay (SSP) and leave.

A good employer will offer sick pay and leave conditions at an enhanced rate beyond the minimum statutory provision.

If you are sick, then you need to consult your contract of employment to ascertain your rights to leave and pay and your responsibilities when exercising those rights. The details of your employer’s sick pay policy may be specified in a supplementary document, such as a staff handbook. If no such policy exists then you will be reliant on the statutory provision.

full pay for 50 working days and half pay for 50 working days During the third year of service ● full pay for 75 working days and half pay for 75 working days During the fourth and subsequent years of service ● full pay for 100 working days and half pay for 100 working days.

Many academies reflect the provision of the state maintained sector. If you have transferred to an academy with protected rights you may be entitled to the same benefits as state sector staff.

It is important to ascertain when your school’s sick year begins and ends, as entitlement often begins afresh in a new year. In the state sector, the sick leave year runs from 1 April to 31 March. New entitlement starts on 1 April each year.

However, if you are absent due to illness on 31 March and continue to remain off sick into April and subsequent months, you will not be entitled to the following year’s allowance until you have recovered and returned to work after 1 April. Your sick leave in these circumstances will continue to be counted against the previous year’s entitlement.

The Conditions of Service for School Teachers in England and Wales, normally referred to as the Burgundy Book, sets out the sick leave arrangements for teachers in the state sector.

Teachers’ national sick pay entitlements are based on a sliding scale according to length of service. Your service is aggregated and so if you leave teaching or the maintained sector and subsequently return you do not start as if you were in your first year of service.

Sick pay entitlement in maintained schools is: During the first year of service ● full pay for 25 working days and, after completing four calendar months’ service, half pay for 50 working days During the second year of service

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Working days are days when the school would normally be open. If you work part-time your entitlement is based on school working days. Your sick pay will be based on your normal earnings over the period of your absence.

For support staff, the state sector provisions are contained in the National Agreement on Pay and Conditions of Service, normally referred to as the Green Book. The sick leave provisions in the Green Book are: During the first year of service ● one month full pay for 25 working days and, after completing four months’ service, two months’ half pay

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During the second year of service ● two months’ full pay and two months’ half pay During the third year of service ● four months’ full pay and four months’ half pay During the fourth and fifth years of service ● five months’ full pay and five months’ half pay After five years of service ● six months’ full pay and six months’ half pay.

Verification of illness If you are sick for seven days or fewer, your employer can ask you to confirm that you have been ill by filling in a self certification form. The form usually includes details about your sickness as well as the dates on which it started and ended, which may be days on which you do not normally work. Your employer will normally require you to provide evidence if you are sick for more than seven calendar days. They usually ask for a ‘fit note’, the informal name for the statement of fitness for work from your doctor.

Statutory sick pay You are entitled to receive SSP for a maximum of 28 weeks in any spell of sickness absence. You are eligible for SSP if you have been sick for at least four or more days in a row (including weekends, bank holidays and days that you do not normally work) and have average earnings of at least £97 per week. If your employer pays enhanced

18 I Working in an academy

sick pay (ie more than SSP), when you receive sick pay, SSP is included.

When you move to half pay, SSP will be paid on top of that amount, although there are some minor exceptions. At the end of your entitlement to SSP you may be entitled to employment and support allowance.

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Maternity and other family rights All employees have minimum statutory rights when having or adopting children, as well as rights to request flexible working to look after those for whom you have a responsibility for as a carer.

A good employer will enhance these benefits and you should always check your contract of employment to see whether you enjoy more generous terms than the minimum statutory rights.

The state maintained sector provides enhanced statutory terms; many good academies mirror the provision of the state sector.

Further general information can be obtained from the ‘help and advice’ section of ATL’s website at www.atl.org.uk. If you have a specific individual query, you should ring ATL’s legal and member services department (see chapter 15 for contact details).

In this chapter, we look at: ● the minimum statutory rights enjoyed by all employees ● the enhanced conditions of service offered in the state sector ● pregnancy and health and safety.

Your statutory rights The following are the statutory minimum entitlements for all employees.

General rights relating to pregnancy Women are protected by law against detrimental treatment arising from pregnancy or having a baby, including redundancy or dismissal. During any paid period of maternity leave, all your normal contractual rights apply, other than pay.

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You have the right to return to the same employment after ordinary maternity leave, if possible, or the same or similar employment after additional maternity leave.

Other entitlements include the right to 13 weeks’ unpaid parental leave until the child’s fifth birthday, or, if the child is in receipt of a disability living allowance, 18 weeks’ unpaid leave until the child’s 18th birthday.

Time off work for antenatal care All pregnant employees, regardless of length of service, or hours of work, are entitled to reasonable paid time off for antenatal care.

Maternity leave All pregnant employees are entitled to 52 weeks’ maternity leave, regardless of length of service, or number of hours worked. This is made up of 26 weeks’ ordinary maternity leave and 26 weeks’ additional maternity leave. You can start your maternity leave at any time from the beginning of the 11th week before your expected week of childbirth (EWC) - the week your baby is due.

In respect of your return to work, written notice is required if you intend to return before the end of your additional maternity leave. Otherwise, it is assumed that you will automatically return to work on the first working day after the end of your 52 weeks’ maternity leave; in this case no written notification is necessary. Should you decide to return prior to the expiry of your additional maternity leave, you must

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give a minimum of eight weeks’ notice in writing.

If you wish to return to work on a different basis to which you are currently employed, you should put your request in writing, giving as much notice as possible to your employer. See section below on ‘flexible working’.

Support staff who work all year round will continue to accrue annual leave while on maternity leave, in accordance with their entitlement in their contract of employment. Support staff on term-time only contracts will usually have their holiday entitlement factored into their pay and therefore are unlikely to accrue further annual leave. Teachers do not usually accrue annual leave; however, if you resign at the end of your maternity leave and have not received the 28 days statutory holiday (pro-rata for part-time teachers during the academic year) then you may be entitled to be paid for this.

The TPS, while you are on paid maternity leave, will be credited with your usual amount of service, and your contribution will be based on what you actually earn. However, while you are on unpaid maternity leave you will be classed as being out of pensionable service.

For support staff in the LGPS, you will continue with full membership of the LGPS during both your ordinary and additional maternity leave, although your pension contributions will be based on the actual pay you receive during this period.

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Statutory maternity pay Pregnant employees are entitled to 39 weeks’ SMP, provided you have worked for your employer for 26 weeks by the 15th week before the baby is due. You may qualify for maternity allowance if you do not qualify for SMP. The first six weeks of SMP are paid at 90% of average weekly earnings, with the subsequent 33 weeks at a statutory rate or the 90% if this is lower.

Occupational maternity pay Good academies will offer improved benefits beyond the statutory entitlements and will often mirror the state sector. If you have transferred to an academy with protected rights you may be entitled to the same benefits as state sector staff.

In the state sector, subject to one year and 11 weeks’ service by the EWC, teachers are paid maternity pay at 100% salary for the first four weeks’ maternity leave, the next two weeks at 90%, the next 12 weeks at 50% plus SMP, and the remainder, namely 21 weeks, at the statutory minimum maternity pay. Subject to one year and 11 weeks’ service, state schools pay support staff maternity pay at 90% for the first six weeks’ maternity leave, 12 weeks at 50% full pay plus SMP, and the remainder of statutory leave entitlement at SMP. Paternity leave and pay Partners of new mothers or adopters are entitled to take two weeks’ paternity leave, provided that they have worked for their employer for 26 weeks by the

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15th week before the expected week of childbirth, or 26 weeks by the date of notification of placement.

Paternity pay is paid either at 90% of average weekly earnings, or at statutory paternity pay, whichever is the lower.

If the mother wishes to return to work with maternity leave outstanding, partners can take additional paternity leave and pay during the second six months of the child’s life. This enables parents to share a period of paid leave between them, giving families greater flexibility in how they choose to look after their children.

The Work and Families Act 2006 means that partners are entitled to up to six months’ leave, which can be taken once the mother has returned to work. Some of the leave may be paid if taken during the mother’s 39 week maternity pay period. This would be paid at the same rate as SMP. Partners will be required to ‘self certify’ by providing details of their eligibility to their employer. Employers and HM Revenue and Customs will both be able to carry out further checks of entitlement if necessary. Further information can be found in the ‘help and advice’ section of ATL’s website.

Adoption leave To qualify for adoption leave, an adopter must have 26 weeks’ service with their employer by the week in which they are notified of having been matched with a child for adoption. If they have the

relevant service, they will qualify for 26 weeks’ ordinary adoption leave, followed by 26 weeks’ additional adoption leave.

Adoption pay Adoption pay is paid for 39 weeks at a flat rate or 90% of the adopter’s average weekly earnings if this is lower.

Where a couple adopt a child, it is their decision which parent receives adoption leave and pay and which parent receives paternity leave and pay.

Statutory time off for dependents All employees have a right to take time off to care for dependents.

There is no qualifying period. You are entitled to take a reasonable amount of time off to deal with unexpected or sudden emergencies and to make any necessary long-term arrangements relating to a dependent. A dependent is a spouse, child or parent, or someone who lives at your address who is dependent on you. It can also include someone who is reliant on you for assistance. In most cases, reasonable time off would not be more than one or two days. There is no legal right to pay, but good employers do give paid time off in such circumstances.

Right to request flexible working Many new mothers wish to consider a return to work on a part-time or flexible basis. ATL’s view is that good employers will be positive in response to such a request and willing to negotiate new terms and conditions with their employees.

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The law provides some employees with the statutory right to request a flexible working pattern which the employer must give serious consideration. Employees have the legal right to request to work flexibly if they have a child under 16, or a disabled child under 18. Similarly, all employees who are caring for an adult who is either married to or the civil partner of the employee, a near relative, or a person living at the same address as the employee have the right to request to work flexibly. By law your employer must seriously consider any application you make, and only reject it if there are good business reasons for doing so.

Businesses and employers in general are becoming more sympathetic to requests for flexible working, as they can see the benefits of having a more flexible workforce. School employers have long recognised this and there are many carers working part-time in education. While this is an important right, it must be noted that there is no automatic right to reduce hours or to work part-time or flexibly.

You may wish to download ATL’s factsheet on Flexible Working. You should check your contract or your staff handbook and talk to ATL, who, where appropriate, can make representations on your behalf.

Optional ‘keeping in touch’ days Mothers or adopters will be able to go into work for up to 10 mutually agreed ‘keeping in touch’ days during their maternity/adoption leave or

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maternity/adoption pay period, without losing maternity or adoption pay entitlement for those weeks. ‘Keeping in touch’ days should be paid by the employer.

Employers are entitled to make ‘reasonable contact’ with an employee during maternity or adoption leave.

Pregnancy and health and safety Any employee who becomes pregnant should inform her line manager immediately so that a risk assessment of her work activities can be conducted and controls implemented as necessary.

A record of the assessment should be made and risks should be monitored throughout the pregnancy until six months after the birth.

If risks are considered to be significant, the employer should make arrangements to adjust the duties or working hours of the employee in order to eliminate or reduce the risks. If this cannot be achieved, the employee should be asked not to attend work for as long as is necessary to protect her health and safety and that of her unborn child.

Throughout this period she must receive full pay. Significant risks to be considered in schools and colleges may include carrying heavy loads, physical assaults, prolonged standing or sitting, temperatures that are too high or low and infections. If you work with a computer, your work station must also be risk assessed.

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Further information is contained in the health and safety section of ATL’s website at www.atl.org.uk. Information is also available from the Health and Safety Executive at www.hse.gov.uk.

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ATL model policies for academies

ATL has developed straightforward model policies, which can be downloaded from ATL’s website or can be provided by ATL’s legal and member services department. The model policies are designed to cover only the main points of good practice and to provide a fair and consistent framework for both employee and employer.

If you work in an academy chain then you should check ATL’s website to see which policies have been agreed nationally.

Of course, we hope that you will never have cause to use them, but you don’t know when you might find yourself subject to a disciplinary or capability process. You may feel unhappy at the way the school has dealt with your concerns and you may wish to pursue matters more formally through the school’s grievance procedure.

Unfortunately, it is common to see problems festering for want of a proper way of addressing the issue. A well run academy will have fair and consistent policies and procedures that deal with problems in a timely manner. Most problems are experienced as individual concerns but often it is through collective action that issues can be resolved.

That is why it is so important to ensure that your school has policies that can prevent problems from escalating, or at least allow for them to be dealt with in an efficient and fair manner. For instance, what do you do if you feel that you are being bullied by your headteacher?

Of course, it is never going to be easy, but having a bullying and harassment policy shows that the school takes the

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issue seriously and has put in place a procedure to address the issue.

Let us take another example: lesson observation. When is it reasonable for the headteacher to observe you teaching a lesson unannounced? Should the headteacher be expected to inform you of the purpose of the observation in advance? Can a teacher expect to have constructive feedback? Should this feedback be in writing and within a specified time limit? These are legitimate questions that should be addressed in a policy that serves the school’s needs while treating the individual staff member fairly.

There are strict legal time limits in which to bring a claim for unfair or constructive dismissal. In respect of a claim at an employment tribunal, a claim must be brought within three months of the incident. Further information is available on ATL’s website and from our national offices - see chapter 15 for contact details. The Advisory, Conciliation and Arbitration Service is also a very useful source of information and guidance.

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TUPE and continuity of service Where a school has converted to an academy, existing staff who transfer to the new academy will be protected under the TUPE regulations. This chapter briefly explains this protection.

TUPE regulations The Transfer of Undertakings (Protection of Employees) (TUPE) Regulations were originally introduced in 1981 to comply with the European Union Acquired Rights Directive (77/187). They were later replaced by the Transfer of Undertakings (Protection of Undertakings) Regulations 2006. The government is currently consulting on possible future changes to TUPE. The core features of the TUPE regulations are as follows: ● They are triggered when there is a change in the legal identity of the employer, in other words, where one employer organisation is replaced by another. If a school moves from LA control or foundation status to become an academy, the regulations will apply. ● They protect the employment terms and conditions of existing employees when the business that employs them is transferred from one organisation to another. In other words, employment contracts transfer automatically for those employed immediately before the transfer from the ‘old’ to the ‘new’ employer, ie the staff involved transfer to the new employer on the same terms and conditions with their continuity of service preserved. ● The regulations only protect existing employees, anyone engaged after the date of transfer is not protected. TUPE

●

● ● ●

●

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does not apply to agency workers.

Any dismissals (or changes of terms and conditions) for reasons connected with the transfer are automatically unfair unless there is an economic, technical or organisational (ETO) reason entailing changes in the workforce.

Redundancy and restructuring can sometimes be defined as ETO reasons.

Collective agreements transfer to the ‘new’ employer.

Trade union recognition transfers if the undertaking retains a distinct identity.

This regulation clearly applies to all status changes of schools, including the move to academy status.

Employers are obliged to inform and consult their employees affected by a proposed transfer either via recognised trade unions or workers’ representatives. For further information about the TUPE consultation process, please refer to ATL’s factsheet TUPE Consultation and the Move to Academy Status, which can be found on ATL’s website at www.atl.org.uk/academies.

What TUPE means in practice An obvious area of uncertainty is how long the protection against dismissal and/or changes in terms of employment lasts after the transfer. The simple answer is that there is no set time limit on TUPE protection following a change of employer. If a new employer wishes to be sure that TUPE protection has expired, they must wait long enough to be able to validly say that the dismissals/changes in terms are not connected with the transfer.

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An important employment appeals tribunal (EAT) decision (London Metropolitan University v Sackur 2006) suggests that two years may not be long enough for an employer to claim immunity from a claim.

The university took over another institution and, after two years had passed, imposed changes in the contracts of the transferred staff to harmonise their terms with its existing employees. The staff claimed continuance of their previous contracts under TUPE protection. The EAT ruled that, even though two years had elapsed, the changes imposed were still regarded to be connected with the transfer and so were invalid.

exception) be dismissed or have new terms and conditions imposed by the ‘new’ employer as a result of the transfer.

Liability for any pre-transfer dismissals arising from the transfer passes to the ‘new’ employer. However, if the (old or new) employer can show that the principal reason for the dismissal is an ETO reason, then the dismissal is not automatically unfair, but will be assessed as to its fairness by the employment tribunal according to the established principles of unfair dismissal law.

Redundancies and reorganisations in a transfer situation can often be justified as being for an ETO reason.

Conditions of service Dismissals Dismissals or imposed changes in terms and conditions (either by the ‘old’ or ‘new’ employer), for which the sole or principal reason is either the transfer itself, or a reason connected with the transfer, are automatically unfair (but subject to the ETO exception). Further, the regulations do not state how much time must elapse after a transfer before dismissals will be regarded as not arising for a reason connected with it (see below).

This important rule provides two central protections for staff involved in a TUPE transfer: ● subject to the ETO exception, they cannot be dismissed by their former employer in anticipation of a forthcoming transfer ● they cannot (again, subject to the ETO

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The TUPE regulations oblige the new employer to ‘stand in the shoes’ of the old employer. Accordingly, all contractual rights (such as pay and conditions) and statutory rights (such as continuity of service) transfer across without alteration.

Continuity of service Continuity of service is important for the calculation of redundancy and some occupational benefits. Whilst TUPE guarantees continuity of service for certain employment conditions (leave, sick pay, maternity rights etc) for existing employees, such rights do not automatically apply when an academy employee moves on to another academy, or back into an LA-controlled school.

Members who are considering such a move should check with the new school

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to confirm if their past service will be reckonable. ATL’s factsheet, Leaving an Academy and Continuous Service provides more detailed guidance.

ATL reps involved in TUPE discussions at the point of conversion should table the issue of continuity of service for new employees. Please see ATL’s factsheet TUPE Consultation and the Move to Academy Status for more information, available at www.atl.org.uk/academies.

Conclusion The TUPE regulations are a notoriously complex area of employment law, and advice should always be sought in the first instance from an ATL rep or official when dealing with matters arising from a TUPE transfer.

Further detailed information on TUPE can also be found in ATL’s factsheet Transfer of Undertakings - a Concise Introduction, which can be found on ATL’s website at www.atl.org.uk/academies.

Collective agreements Rights under existing collective agreements transfer across to the new employer under TUPE. Accordingly, many provisions regarding individual rights to pay and conditions etc set out in collective agreements will transfer intact. Therefore, the Burgundy Book for teachers, the Green Book for support staff, the 2003 Workload Agreement, and any local single status agreements are all automatically transferred across at the point of transfer.

Trade union recognition A TUPE transfer preserves union recognition so that the union is recognised by the new employer as it was by the transferor. However, the move to academy status means that there may be a need to agree new arrangements for the practical operation of union recognition within the school. For further information on trade union recognition, please see chapter 14.

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NQT induction in academies

In certain circumstances it is possible for newly qualified teachers (NQTs) to undertake their induction in an academy.

ATL advises that NQTs check with the academy that it is possible to undertake induction and that the necessary support will be provided.

An NQT has one chance only to complete induction. An NQT who has completed induction and failed to meet the teachers’ standards is not permitted to repeat it, although they may appeal against the decision.

Whilst there is no requirement for teachers in academies to undertake induction if you subsequently wish to teach in a maintained school then you will need to complete it. There is no timescale by which you must have completed induction but you must commence your induction once you start work in the maintained sector. If you work on a supply basis in a maintained school you may only do so for five years from the date of your first placement before completing induction.

Academies who wish to offer an NQT who has been awarded qualified teacher status (QTS) the chance to complete statutory induction must provide a suitable post and programme that will enable the NQT to continue to meet the same teachers’ standards as teachers in the maintained sector. The academy must provide the NQT with an induction tutor with QTS; the NQT should have a reduced timetable on a comparable basis to other NQTs working in relevant schools such that they are not disadvantaged when compared to those serving

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induction in a maintained school.

They should also receive time for further development.

The academy must reach an agreement with either a LA, a teaching school or (for schools affiliated to the Independent Schools’ Council) the Independent Schools’ Council Teacher Induction Panel that they will act as the school’s appropriate body and oversee and validate the induction process.

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Redundancy What is redundancy?

Redundancy arises where an employee is dismissed either because: ● the employer has ceased, or intends to cease, to carry on business ● the employer’s requirements for employees to carry out work of a particular kind in the place where she/he is employed has ceased or diminished, or are expected to do so.

Some examples of redundancy situations might include: ● a subject is dropped ● a department is overstaffed ● a school closes ● two schools merge ● duties are reorganised so the same work can be done by fewer teachers ● a full-time post is cut to part-time ● tight finances require cuts in staff numbers.

Redundancy procedure If you are unfortunate enough to be faced with a possible redundancy situation then the starting point is your contract of employment, school redundancy policy, or staff handbook. The purpose of having a redundancy policy and procedure is to ensure that it is clear to everyone how this difficult situation will be dealt with.

A good redundancy policy will allow for the process to be dealt with in a fair, consistent and timely manner.

If your school does not have a redundancy policy and procedure then you, and your colleague ATL members, should approach the school management to open discussions on the issue.

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The preferred time to agree the terms of such documents is before redundancies are threatened.

Even if your school does not have a redundancy policy, there are important principles that it must follow: ● warning staff of the possibility of redundancy ● consulting staff affected and recognised trade unions ● establishing objective criteria for selection and applying them fairly ● taking reasonable steps to find other work for displaced staff.

As a first step, the academy needs to identify the group of staff at risk.

The ‘pool for selection’ depends on whether people are doing the same, or similar, work and whether jobs are interchangeable. The redundancy pool in a preparatory school might be all teachers. In secondary schools the pool is often wider than first thought; for example, if a school cuts ICT from the curriculum but the ICT teacher has a PGCE in maths and most maths teachers also teach ICT, then the pool might be teachers of both ICT and maths.

In cases where there is the threat of 20 or more redundancies, special rules on consultation apply. Please contact ATL’s legal and member services department at ATL’s London office on 020 7930 6441 in these circumstances.

Consultation Your headteacher or line manager must consult you personally about a redundancy in order to establish (amongst other things) any factors that

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might be of bearing of which he or she was unaware, or about other jobs which it might have been assumed you would not do. Simply informing you by letter is not good enough. Consultation must always be meaningful.

Notice of redundancy If you are made redundant, you are entitled to either contractual notice or, if longer, statutory notice. Statutory notice is one week for each completed year of service, up to a maximum of 12 weeks.

Unfair selection criteria Selection criteria must be reasonable and clearly defined from the start.

Employment tribunals criticise the use of imprecise criteria such as ‘flexibility’ or ‘balance of skills’ because there is no clear way of assessing them. Selection for redundancy on the grounds of trade union membership is not allowed, and criteria should not discriminate on grounds of sex, race, disability, religious belief, sexual orientation, gender reassignment, marriage or civil partnership, pregnancy or maternity or age.

Some employers use attendance records as a criterion for selection, which ATL does not recommend. If there is an attendance issue then it should be dealt with in the appropriate way. Use of such grounds can be potentially discriminatory, eg using attendance records where a woman has recently been away on maternity leave.

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The number of years of relevant experience, or length of service, has often been used as a ‘tie-break’ criterion.

The latter may be referred to as ‘last-in, first-out’. However, under the Age Discrimination Regulations 2006, this may now be deemed to be discriminatory and should only be used subject to ensuring that it can be ‘objectively justified’ and is non-discriminatory.

Part-time employees must not be treated less favourably than full-time employees.

It is not permissible for an employer to decide to make redundancies on the basis of letting the part-time employees go first.

Even with fair criteria, a redundancy can still be procedurally unfair if the school applies the criteria unreasonably or with the wrong group of teachers, or does not consult. A failure to follow its own redundancy policy and procedure will also leave a school open to challenge.

Fixed-term contracts The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 make it unlawful for an employer to treat fixed-term contract staff less favourably than comparable permanent colleagues. This means, for example, that if there is a redundancy situation among support staff, a school cannot automatically select those who are on fixed-term contracts. Furthermore, the non-renewal of a fixed-term contract may also qualify for a redundancy payment after two years’ service (unless that contract is for a specific temporary need,

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such as covering for someone who is on maternity leave).

Avoiding redundancy The school must take reasonable steps to find alternative work for you. If it does not tell you about an appropriate vacancy, then your dismissal may be unfair.

Similarly, you are obliged to consider offers of suitable alternative employment, and you may lose your redundancy pay if you unreasonably refuse a suitable job.

ATL recommends that when a redundancy is being considered, governors and senior management should take a ‘whole school’ approach, looking beyond the post nominated for deletion to review the entire school to ascertain whether rationalisation is possible. A restructuring process might obviate the need for dismissals.

An employer is obliged to seek to avoid making an employee redundant if at all possible. There are various ways in which this could be achieved. It may be that the person in the post has training, experience and expertise extending beyond their current age group and it may be that he or she could be employed elsewhere in the school.

It may be that teaching colleagues are planning to retire or to terminate their contract with the school on other grounds. A vacancy could arise which the employee facing redundancy could fill.

A common approach is to invite staff to volunteer for redundancy, as this could remove the need for a compulsory

redundancy. If there are no volunteers, then a set of criteria for a skills and experience audit can be generated, which all staff complete and is then scored to establish who has the most to offer to the school, eg who can teach subjects other than those they are currently required to offer. In transferring to a new role, it is not unreasonable to expect a school to provide appropriate training if necessary, arranging a phased start and mentoring.

Help in finding another job If the redundancy cannot be avoided, then your employer must provide reasonable paid time off for you to seek alternative work. A good employer will also offer appropriate training courses to enhance your employment prospects, but this is not an entitlement.

Challenging a redundancy decision To challenge your selection for redundancy, you should follow your academy’s redundancy procedure.

An employee facing the possibility of redundancy must be informed in writing that their employer is considering making their job redundant, sometimes known as an ‘at risk’ letter. The employer should consult with employees before making the selection for redundancies. If your post is selected for redundancy you should have a right of appeal and, if so, this will be detailed in the procedure.

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An appeal is likely to be to a panel of governors. It is essential that you exhaust internal procedures before claiming unfair dismissal at an employment tribunal.

However, you should also be aware that in order to bring such a claim you must apply to an employment tribunal within three months of the date of your dismissal.

Redundancy pay If you are made redundant, you are entitled to a statutory redundancy pay, providing you have two years’ continuous employment with the same academy or employer. This is a statutory entitlement, but your academy may operate a more generous scheme which enhances the legally required minimum.

Whilst TUPE guarantees continuity of service for certain employment conditions, including redundancy, for existing employees, such rights do not automatically apply when an academy employee moves on to another academy, or back into a maintained school.

Members who are considering such a move should check with the new school to confirm if their past service will be reckonable for redundancy purposes.

ATL’s factsheet Leaving an Academy and Continuous Service provides more detailed guidance.

Notice pay

When someone is made redundant, they are still entitled to receive their full contractual notice. If a school fails to comply with the notice period in your contract then, in addition to your entitlement to redundancy pay, the

32 I Working in an academy

employee is also entitled to claim pay in lieu of notice. Similarly, you will be entitled to any outstanding holiday pay.

Redundancy pay and new employment You will not lose your redundancy pay provided you do not start work at another school, without permission, before your last day of service.

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Organising: the importance of working together Acting collectively gives strength and confidence to teachers and support staff.

It avoids the possibility of you or your colleagues becoming isolated and it is the most effective strategy to prevent an employer dismissing an issue as being of importance and concern to just one individual. The more people in ATL who speak with one united voice, the more influence you will have with headteachers and governors. Members will have greater confidence in their ability to influence positive change. It is therefore vital to strengthen our position by recruiting new members; we need ATL members to get involved by asking their colleagues to join ATL. The more the membership grows in your school, the more power you will have to influence decision-making through recognition.

A growing membership in your workplace could also result in you or your colleagues opting to become either a workplace, union learning or health and safety rep, which would lead to enhanced opportunities and safer working conditions at your school. Ultimately, a growing membership will give ATL, your union, more influence in the sector and in education generally.

The importance of the ATL academy rep The role of the rep is critical to the successful function of a union, especially in an academy. When a maintained school becomes an academy it effectively divorces itself from national bargaining on pay and local consultative machinery. For staff working in the school prior to the transfer, their pay and

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conditions would be protected by TUPE legislation; however, this does not mean that there will never be any proposed changes or that new staff will not start on differing terms and conditions. ATL’s ability to continue to efficiently help members is down to early involvement and the best way to achieve this is to have a rep who works at the school who is involved in regular discussions with both members and management.

A full guide to the TUPE process and changes after the transfer can be found on ATL’s website at www.atl.org.uk/ academies.

The role of the ATL rep The role of the rep is varied but, in summary, includes: ● providing information to other members in your school ● recruiting new members to ATL ● acting as a conduit between ATL and the members in your school ● ‘signposting’ members in your school to sources of advice and information within ATL ● providing support as a ‘friend’ in difficult discussions or meetings with managers ● being involved in discussions with management about school issues ● organising member meetings to discuss school issues.

It may be that at first you undertake some but not all of these tasks. As you become more experienced and confident, you will develop and grow into a role that you will find both personally and professionally rewarding.

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Certain roles are more important at different times, for example, if your school has recently become an academy and there is no union recognition agreement at workplace level this may be a focus of activity. If, however, your school changed status some time ago and the school is considering making changes to staff contracts, being involved in this process and keeping members informed, including organising a meeting with them, will be really important.

Representing members in the more serious disciplinary, or grievance, hearings is usually undertaken by the local ATL branch secretary or regional official, who can also provide you with advice and support when raising school-wide issues. ATL is always on hand to offer support, advice and information. Simply contact your branch secretary, or call ATL’s London office.

For more details about the TUC model recognition agreement see chapter 14 and visit ATL’s website at www.atl.org.uk/academies.

Things to do on becoming a rep: ● Let ATL’s membership department know that you have been elected or appointed by the members at your school. They will add you to the database as the rep. At the same time, you can ask for a list of all the ATL members at your school. ● Make sure we have your email address as this will enable us to keep you fully up-to-date with ATL events and activity. ● Inform all members that you are the new ATL rep.

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Circulate any updates from ATL and make sure there are copies on the union noticeboard.

Inform your school that you are the new ATL rep so that you can be added to future JCNC meetings, if there are no meetings request dates for meetings to take place.

Get in touch with your branch secretary to introduce yourself. ATL’s London office (telephone 020 7930 6441) can give you the appropriate contact details if you don’t have them already.

Contact ATL’s learning and development department by email at learning@atl.org.uk and book yourself on the next course for ATL reps in your locality.

Order all the recruitment materials and publications you need from ATL’s despatch department, by telephoning 0845 4500 009 or emailing us at despatch@atl.org.uk, quoting the product code wherever possible.

Alternatively, you can download PDFs of most of our publications or place your order online at www.atl.org.uk.

Take part in our academy reps’ Google group, where you can share your experiences and problems with your fellow ATL reps. As a new rep, you should receive an invite to join the group.

Top tips on recruiting members to ATL: ● Face-to-face recruitment has proved to be the most successful way of encouraging new members to join.

If colleagues are too busy to talk, leave them with a recruitment brochure and arrange to see them another time.

Always follow up this initial contact

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after a period of ‘thinking time.’

Introduce yourself to all new staff, especially NQTs, and talk to them about the benefits of membership. Ask them to join ATL. Don’t forget to talk to student teachers and make sure they are benefiting from free student ATL membership.

Be aware of the subscription rates and membership offers for the various membership types. Details of subscription rates and how to join can be found on ATL’s website at www.atl.org.uk/join.

Talk to existing members of staff about the benefits of joining ATL and explain why ATL is different from the other unions.

Tell potential members about ATL’s strengths and successes. Mention the benefits of choosing ATL, and draw on your own experiences of union membership.

Keep the noticeboard up-to-date with the latest posters and information from ATL, and have a selection of recruitment materials at your fingertips.

Keep up-to-date with the latest developments in education and issues in your school. Know who to contact and where to find out information quickly, in case potential members have any problems or queries.

Listen to your members’ views and make sure they are heard at your local branch meeting or by ATL. Hold meetings of ATL members in your school, when appropriate.

Your rights as a trade union rep All employees have a democratic right to be members of a trade union. The law

also protects trade union reps and officials from discrimination on the basis of their trade union activities.

Your rights as a rep where ATL is recognised As an ATL rep in a school that recognises ATL, you have certain statutory rights.

You are entitled to: ● take reasonable, paid time off for union duties and training ● display union information somewhere in the school, such as a noticeboard in the staffroom ● reasonable use of school facilities ● use of a room to hold meetings ● access to documents concerned with pay and conditions of service.

Joint Consultative and Negotiating Committee meetings JCNC meetings are basically meetings held with management and other appropriate persons to discuss school issues and future proposals.

They are also held when there is a need for proper negotiation over proposed changes to staff terms and conditions. It is good practice for all schools to hold regular timetabled meetings with union representatives as this will aid the smooth running of the workplace. This is more important if a school is operating as a completely independent organisation. Support and advice is available through your branch secretary or from ATL’s London office.

More information on setting up a JCNC is available from ATL’s website at www.atl.org.uk/academies and in chapter 14.

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School management Try to establish a positive relationship with the management of your school.

Your headteacher will appreciate that regular discussions and well-organised channels of communication can prevent disagreements. Ensure that there is a proper procedure for dealing with members’ difficulties.

Other colleagues It is important to liaise with other union reps in your establishment, working together on issues affecting all staff in your school or college; this way you can ensure that members are kept informed of any issues that may arise.

Negotiating skills Most reps will find themselves undertaking some level of negotiation, either on an individual issue or on behalf of all members in the establishment. It is important to understand the differences between negotiation and consultation.

In negotiation, both parties need to reach an agreement, whereas a consultation is a commitment to exchange views.

However, consultation is much more than a giving and receiving of information, it is a way of ensuring that the views of members and the union are progressed.

Negotiation top tips: Be clear about your aims from the outset; what are you seeking to achieve from this negotiation? Assess your aim to ensure that it is realistic. ● Careful preparation and research is essential. Plan your arguments and work through any counter-arguments that you may be faced with. ●

36 I Working in an academy

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Prepare for and, if necessary, seek alternative solutions.

Consider what you can offer in any ‘ bargaining’ situation. Be aware of your ‘bottom line’. What must you achieve as a minimum for your colleague members?

Seek a ‘win/win’ outcome that benefits both the member/s and management.

Making meetings work Occasionally, it may be necessary to hold a meeting of ATL members in your school to discuss school issues. Perhaps a decision needs to be made collectively, or maybe you feel that members should be kept informed of the current position regarding important discussions with the school. You may welcome the opportunity for members to express their views for passing onto the school.

Think carefully about your members’ preferences regarding time and location in order to maximise attendance.

Top tips for meetings: ● Only hold meetings when necessary, unless members request that they are held on a regular basis. ● Consider the number of members involved and the time available. ● Give members advance notice of the time, location and details of the main issues to be discussed. Having established a start and finish time stick to them. ● Ask a colleague to make notes and circulate these to all present as soon as possible after the meeting. ● Report back to your members the result of any action you have taken following the meeting. Keep members informed of all further developments and resolutions.

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Always be aware of the possibilities of recruiting new members. You may wish to hold an ‘open’ meeting (with members’ agreement) for all staff to attend, but do remember to follow this up with those who are not currently ATL members.

The more membership grows in your school, the more power you will have to influence decision-making.

Further information and resources to help you in your role can be found in the ‘reps’ toolbox’ section of ATL’s website at www.atl.org.uk.

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Trade union recognition

What do we mean by ‘recognition’?

A recognised trade union represents workers in negotiations with their employer. These negotiations will usually centre on workers’ terms and conditions. When an employer recognises a trade union, it will be for negotiations on behalf of a particular group of workers, known as a ‘bargaining unit’. So, for example, in an academy, ATL will be recognised to negotiate on behalf of the bargaining unit encompassing teaching staff.

A trade union recognised by an employer has certain legal rights: ● union officials must be given time off work by the employer to carry out their trade union duties ● union members are allowed to take part in trade union activities ● officials must be given relevant information by the employer that they can then use in collective bargaining with the employer ● union learning representatives must be given time off for their duties in relation to the learning and training of employees and to have training to carry out those duties.

A recognised trade union also has the right to be consulted by the employer about certain issues.

These include: ● pay, hours and holidays ● health and safety matters ● redundancies ● when the transfer of the employer’s business is being considered.

38 I Working in an academy

TUC model recognition agreement for academies The TUC model recognition agreement for academies recommends that the following items should form the core negotiating agenda in an academy: ● negotiating machinery and procedures ● terms and conditions of employment ● staffing and pay structures ● employment policies and procedures ● matters of health and safety ● operational issues affecting the deployment, security and prospects of staff ● staff training and development ● professional issues concerning teaching and learning, including issues relating to the curriculum, behaviour policy etc ● equal opportunities matters.

Does my school recognise ATL? If your school was a LA, trust, voluntary-aided, voluntary-controlled or foundation school prior to the conversion to academy status, then trade union recognition was automatically transferred over in accordance with the Transfer of Undertakings [Protection of Employment] (TUPE) Regulations. Similarly, if your school is an amalgam of two or more former maintained sector schools, then trade union recognition continues to apply.

However, the conversion to academy status means that a new agreement is

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desirable to ensure that issues which used to be dealt with at LA or national level can still be addressed.

These issues include: ● union facilities issues, including time off for carrying out branch and national union duties (see ATL’s factsheet, Academies and Facilities Time Guidance) ● practical facilities, such as noticeboards, office space etc ● the arrangements for holding members’ meetings ● general consultation and negotiation of pertinent issues, including pay and terms and conditions (see ATL’s factsheet, Your Joint Consultative Negotiating Committee and Why it is Important).

To aid this process, six schools’ unions: ATL, GMB, NASUWT, NUT, Unison and Unite, have drawn up a model agreement for academies in England. In partnership with reps from the other unions, the model agreement should be presented to the academy governing body and management during the TUPE consultation process (see ATL’s factsheet, TUPE Consultation and the Move to Academy Status for more details).

It should be borne in mind that the model agreement is just that, it represents the optimal outcome to the discussions with the new academy.

Some academies will seek to amend the model, or submit their own draft agreement, or even decline to negotiate at all, arguing that there is no need to

put in place a new agreement, as TUPE provides for continuing union recognition. In all these circumstances, it is important to negotiate the best possible arrangements, though the principles of union collective bargaining and organisation must remain ‘non-negotiable’.

A copy of the model agreement is available from ATL’s website.

For advice and assistance during the discussion on your new recognition agreement, please contact your branch secretary.

The academy joint consultative and negotiating committee Perhaps the most important issue to address during the initial discussions with the new academy is the need to establish a school forum, where negotiations on changes to contractual rights and consultation on school policy matters can take place.

Normally referred to as the JCNC this body will fill the void created by the move away from national bargaining and LA management of the school.

Whilst there is no legal necessity to set up a JCNC (because union rights to bargain on contractual matters, and to be consulted on changes in general, have been transferred across to the new school under TUPE), the establishment of such a body will

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provide a valuable arena for discussions between management and their staff, and ensure that the senior management team honour their obligation to uphold union recognition rights.

different. Given that there are no existing staff to transfer into the school, TUPE does not apply and a campaign will need to be launched to secure union recognition.

ATL’s factsheet, Your School Joint Consultative and Negotiating Committee – Why it is Important contains further advice, including a model constitution for your school JCNC. It can be downloaded from ATL’s website at www.atl.org.uk/academies.

Voluntary recognition

Recognition in academy chains and federations Working with our sister education unions, ATL also seeks new recognition agreements with the numerous academy chains, trusts and federations that have sprung up since the start of the academies programme. Such agreements are necessary, as core decisions on employment and other matters tend to be taken centrally within the organisation, though school-based arrangements also need to be in place to deal with local issues.

To view the current list of chain/trust/ federation union recognition agreements, please visit ATL’s website at www.atl.org.uk/academies.

If my school doesn’t recognise ATL, what can I do?

The position of ‘new-build’ academies and newly-created free schools will be

40 I Working in an academy

A voluntary recognition agreement is preferable, as it is best to persuade the school of the advantages of improved communication and the benefits of a formal consultation structure. For recognition to work effectively, ATL prefers that the school is comfortable with the arrangement.

Arguments that can be used when seeking to persuade the school management of the merits of union recognition can be found in ATL’s factsheet, The Advantages of a Recognition Agreement, available at www.atl.org.uk/academies.

When launching a bid for voluntary recognition, the TUC model agreement (suitably amended to take into account the nature of the school) should be used as a starting point.

Statutory recognition If the voluntary recognition process does not work, you are entitled to seek statutory recognition for a group of workers where at least 10% of the group are members of ATL. A statutory body, the Central Arbitration Committee, considers the application from the union and representations from the employer. If the union has 50% of the group of workers in membership, the tribunal normally awards

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recognition automatically.

Where it does not or where there is uncertainty as to whether those members wish their union to be recognised, the tribunal might order a ballot of the group of workers. If a majority of the group votes in favour of recognition and that majority constitutes at least 40% of the group then recognition is awarded. Under a recognition achieved through the statutory process, an employer must consult on pay, hours and holidays.

For further information on the voluntary and statutory routes to trade union recognition, and for advice on how to go about launching a campaign for recognition at your school, please email us at organise@atl.org.uk.

Further information on recognition can be found on ATL’s website, including a concise ATL briefing on recognition, and the model ATL recognition agreement.

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Other sources of information

ATL departments

How to join

Legal and member services department For advice and support on any professional issue, contact ATL’s legal and member services department on 020 7930 6441. For enquiries about financial assistance in the case of hardship under the ATL Trust Fund, call 020 7782 1546. For all pension enquiries, call 020 7782 1600.

New members can join ATL by telephoning 0845 057 7000, online via ATL’s website at www.atl.org.uk/join, by post to ATL, FREEPOST 7363, 7 Northumberland Street, London, WC2N 5RD, or by fax to 020 7930 1359.

Further information, such as subscription rates, can be found in the ‘join us’ section of ATL’s website.

Membership department For information regarding member details, membership lists, membership categories, subscription rates and payment methods contact ATL’s membership department.

Tel: 020 7782 1602 Email: membership@atl.org.uk Recruitment For support, advice and information on any aspect of your recruitment activity.

Email: organise@atl.org.uk.

Learning and development department Tel: 020 7782 1582 Email: learning@atl.org.uk ATL media relations Tel: 020 7930 6441 Email: info@atl.org.uk

42 I Working in an academy

Out-of-hours helpline For practical advice on any professional issue outside office hours, call 020 7782 1612 (line open Monday to Friday, 5pm to 8pm, during term time).

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Other useful organisations Advisory, Conciliation and Arbitration Service Helpline: 08457 474747 Web: www.acas.org.uk Department for Education Tel: 0370 000 2288 Web: www.education.gov.uk Department for Business Innovation and Skills Tel: 020 7215 5000 Email: enquiries@bis.gsi.gov.uk Web: www.bis.gov.uk Equality and Human Rights Commission Tel: 0845 604 6610 Email: info@equalityhumanrights.com Web: www.equalityhumanrights.com Health and Safety Executive Web: www.hse.gov.uk Teachers’ Pension Scheme Tel: 08456 066 166 Web: www.teacherspensions.co.uk Teacher Support Network, England Tel: 0800 056 2561 Web: www.teachersupport.info Trades Union Congress Tel: 020 7636 4030 Web: www.tuc.org.uk

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Found this useful? ATL has lots of other resources, all free to members, which you might be interested in. Visit ATL’s website at www.atl.org.uk to view the full range of legal advice publications and factsheets on offer from ATL, along with a full section of help and advice.

Further relevant publications from ATL include: ATL Redundancy::

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ATL Offsite students 2011::

2EDUNDANCY 9OUR GUIDE FROM !4, THE EDUCATION UNION

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4AKING STUDENTS OFF SITE 9OUR GUIDE FROM !4, THE EDUCATION UNION

Violence, threatening behaviour and abuse Your guide from ATL – the education union

,EGAL ADVICE SERIES

,EGAL ADVICE SERIES

Legal advice series

Section Title | 2

Redundancy Product code: PE10

Taking students off site Product code: PED03

Violence, threatening behaviour and abuse Product code: PE28

Finished with your copy? Pass it on to other colleagues who might find it useful.

© Association of Teachers and Lecturers 2012. All rights reserved. Information in this publication may be reproduced or quoted only with proper acknowledgement to the author and the Association.

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ATL - the education union 7 Northumberland Street London WC2N 5RD Tel: 020 7930 6441 Fax: 020 7930 1359 Cardiff Tel: 029 2046 5000 Email: cymru@atl.org.uk

Belfast Tel: 028 9078 2020 Email: ni@atl.org.uk

www.twitter.com/atlunion www.facebook.com/atlunion Email: info@atl.org.uk Website: www.atl.org.uk

Scotland Tel: 0131 272 2748 Email: scotland@atl.org.uk

ATL product code: PE39 Date: November 2012 Edition: first ISBN: 1902 466 67 5 Price: ÂŁ9.99 (non-members) Free (members)