The NEU position is clear: all processes associated with converting schools to academy status must be halted immediately and should not resume until schools reopen and normal life resumes.

Why should academy conversion be suspended?

TUPE Consultation Requirements

  • Employers are legally obliged to carry out meaningful consultation under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) 2006.
  • Where a maintained school is converting to academy status, the current employer is the local authority. During this health crisis, local authorities are at the centre of co-ordinating support for communities. Their staff time, finances and other resources should not be tied up on work associated with academy conversion when they have life and death issues to deal with.
  • Under TUPE, employers must consult with recognised unions or elected staff representatives, providing specific information in enough time before the transfer occurs to enable consultation to take place. This includes information such as the date of the transfer, the legal, economic and social implications of the transfer on affected employees and details of any measures envisaged.
  • If it is envisaged that measures will be taken, an employer is obliged to consult with a view to reaching agreement. This means negotiation.
  • Negotiation is simply not viable during this period.

Public Consultation

  • The Academies Act 2010 requires a school to consult 'such persons as they think appropriate' on whether the school should become an academy. The Act does not say who should be consulted or the length of the consultation required.
  • The NEU view is that that schools must consult with all key stakeholders, including parents, staff, pupils, other schools, the local authority and the wider community, over a period of at least six weeks.
  • This is impossible when the school/college is closed and when stakeholders are unavailable or otherwise engaged in urgent work.
  • At this time, staff and unions should be focussing their attention on minimising the impact of COVID-19 on children and young people.
  • Parents and carers cannot be expected to prioritise academy consultations during this health crisis. This is especially true for key workers. Many parents will also be juggling working at home and caring responsibilities.

Consultation and negotiation cannot be conducted remotely

  • Consultation or negotiation requires the full involvement of all parties and can be successful only through face-to-face meetings.
  • Carrying out a TUPE or public consultation via video or telephone conferencing will be unjust and unfair. Meaningful consultation – required under TUPE and the Academy Act – is not possible remotely.
  • During TUPE consultations there is a requirement to ensure ‘meaningful consultation’ with all employees and their respective trade unions. In addition, the public consultation required under the Academy Act must be ‘meaningful’. Such consultation will not be possible remotely.
  • There is no guarantee that all parties in the consultation or negotiation will have access to the necessary technology, or the ability and training to use it effectively.
  • It is impossible to maintain necessary confidentiality via video or telephone conferencing. It is the NEU view that an employer will be in breach of their duty of care to an employee if they insist on using such methods.
  • There will be logistical problems in ensuring that all parties have access to the necessary documents.
  • It will be impossible to facilitate any private discussions required between parties during the consultation meetings, if done through video or telephone conferencing.
  • Potential problems with the quality of participants’ internet connections means there is a risk of discussions becoming disjointed, with important facts missed and/or misinterpreted.

Precedent elsewhere

  • Employment tribunal hearings are not currently proceeding remotely.
  • The Education Workforce Council (EWC) has stated that “all public fitness to practise hearings have been postponed until the end of August” in recognition of the fact that it is not possible to undertake such processes remotely.
  • The Teacher Regulation Authority in England (TRA) has said it “will not be holding any Professional Conduct Panels at the present time.”

The NEU is committed to working with employers to ensure the education system is able to cope with and respond to this situation through collaboration and co-operation. However, should schools/employers fail to carry out proper meaningful consultation with our members we will pursue all legal remedies available to us.

Wider considerations

Schools have a moral obligation to provide a sense of security to staff, pupils and parents during these deeply unsettling times. The threat of the school changing to academy status during the lockdown is likely to destabilise staff and pupils further.

For many children and young people, school is one of the most stable features of their lives. Pupils have already lost their chance to say goodbye to friends and teachers and to take part in end of term celebrations, particularly those in a transition year. Any further uncertainty and instability must be avoided.

Both during the current school closures and in the period when life starts to return to normal, pupils are likely to need additional support, and this will rely on the goodwill of school staff. That is best achieved by pausing any changes to staff working conditions and school status.