The Department for Education on their website state that “All schools are required to carry out a consultation but it is up to them to decide whom and how to consult”. It is therefore clear that if a school wishes to convert from its current status to an Academy it is important for the Governing Body to consider how that decision may impact those people with an interest in the school. There are, however, no detailed procedural rules expressly laid down in the legislative instrument for the school to follow with regard to consulting with those interested parties.
Specifically the Academies Act 2010 (Act) states at clause 5:
1. Before a maintained school in England is converted into an academy, the schools governing body must consult such persons as they think appropriate.
2. The consultation must be on the question of whether the school should be converted into an academy.
3. The consultation may take place before or after an Academy Order, or an application for an Academy Order, has been made in respect of the school.
The lack of detailed procedural steps required reduces the likelihood of appeals being made for breach of the technical decision making process and it is to be assumed that this is one of the reasons why the Act leaves the Governing Body with the discretion of consulting with ‘such persons as they think appropriate’.
It would be recommended that the Governing Body, undertake a thorough consultation with interested parties to include the teachers, local authority, parents, local schools and even the school pupils. It is reasonable that the information is presented in a letter inviting comments on the proposed conversion and in addition publications could be made available on the school website. It is best that the governors ensure that:
1. consultation is made at a time when the proposals are at a formative stage;
2. the governing body gives sufficient reasons for the proposal;
3. adequate time is left to enable a response; and
4. the outcome of a consultation must be conscientiously taken into account in finalising proposals.
The consultation with staff is different as the Governing Body or Local Authority will need to adhere to the Transfer of Undertakings (Protection of Employment) Regulations 2006, also known as TUPE. TUPE is designed to protect all employees employed by the school prior to the conversion and also employees dismissed before the transfer as a result of the transfer. Under TUPE an employee's contract will be transferred automatically from the pre-conversion Governing Body or the Local Authority to the Academy Trust without any alteration and with the guarantee of continuity of service. If changes to the staff contracts are proposed then it is important to seek legal advice as a specific process needs to be carried out in relation to the transferring staff. Always remember that no detrimental changes can be made to the staff contracts except in exceptional circumstances.
It is important that staff understand the protection given to them by these regulations as this may prevent concerns arising around pay and working conditions and enable and encourage a meaningful dialogue. Any employee who does properly object to the conversion to an academy will not transfer and by operation of law their contract will be terminated. There are financial penalties of up to 13 weeks uncapped pay per employee if the TUPE Regulations are not properly adhered to. However, this risk can be minimised by seeking the specialist advice and support of Wellers Law Group who will pro-actively guide you through this process.
The information on Academies is continually being updated and if you would like further advice please contact Tracy Evans on 0208 290 3982 or by email at tracy.evans@wellerslawgroup.com
