There are many strong health and safety arguments which can be deployed when schools are considering converting to academy status (see NEU health and safety briefing Using Health and Safety as a Tool to help Campaign against Academies)
However, once a school has converted, the emphasis must be on ensuring continuing high standards of health and safety, at least comparable to those in the maintained sector. For many academies this will be a major challenge – they will not be able to automatically call upon the support offered by the local authority and the academy trust or governing body will assume all employer health and safety responsibilities. For this reason it is crucially important that unions and employers in academies work effectively together on health and safety matters and that every academy has an NEU health and safety representative and a health and safety committee.
This briefing will be useful for NEU health and safety advisers and NEU safety representatives who are seeking to ensure high health and safety standards in academies, whether they are convertors or new academies that have never been under local authority control. It highlights the legal provisions governing transfers, sets out the legal framework governing health and safety in academies, highlights key issues of difference between academies and the maintained sector, and suggests the type of structures that need to be established.
The process of academy conversion
When a school converts to academy status it is covered by the Transfer of Undertakings (Protection of Employment) Regulations 2006. These TUPE regulations offer a legal framework that protects the rights of employees transferring from one employer to another.
TUPE protects each employee’s existing contractual position when a school is transferred from one employer to another employer. This happens by operation of law when a school takes academy status. Employees of the ‘old’ employer (the local authority or governing body) automatically become employees of the ‘new’ employer (the academy governing body), keeping the same terms and conditions.
As well as providing for individual employee’s contractual rights to transfer to the new school, TUPE requires the transfer of the union’s collective rights to organise and negotiate on behalf of its members. TUPE provides that both the union recognition itself and the agreements that have been made between the union and the employer also transfer, including any that relate to health and safety.
TUPE imposes various duties on employers when a school converts to academy status. Before the date of transfer, the union has a right to be informed about the transfer process itself and to be consulted about any proposed changes to employees’ working conditions which are ‘envisaged’ by either the old or new employer.
TUPE places specific duties on employers regarding what information must be given to the union and the way in which consultation must take place.
The two duties to inform and consult are separate and independent – even if no changes are anticipated, the existing employer still has a duty to provide specific categories of information to the union. The information to be given to the union may be provided in a number of ways.
Typically it will be a combination of oral and written reports in consultation meetings, letters to staff, staff presentations and so on.
The primary legal responsibilities for health and safety rest with the employer, which is the governing body for stand-alone academies or the academy trust if the school forms part of a chain. In order to carry out their legal responsibilities for health and safety, employers need to delegate responsibility for managing health and safety matters. To make sure delegation works, effective systems for managing health and safety have to be in place.
In academies, as in schools, effective health and safety management systems will make sure that the employer’s legal duties are discharged; that teachers and other staff know that their employer is taking their health and safety seriously; that parents have confidence that their children are safe; and that resources are not wasted on emergencies which could be avoided.
The main relevant legal requirements are to be found in the Health and Safety at Work etc Act 1974 (the HASAWA) and the Management of Health and Safety at Work Regulations 1999 (the management regulations). For further information on legal requirements see the NEU health and safety briefings The Legal Framework and Managing Health and Safety.
Health and safety policy
The fundamental document underpinning employers’ health and safety management systems is the employer’s health and safety policy statement. The HASAWA requires all employers to have a health and safety policy statement.
As employers, individual (ie non-chain) academies are legally responsible for producing their own policy statement. Academies which are part of chains will be expected to adopt the policy of their academy trust.
The policy should start off with a statement of the employer’s commitment to meeting its health and safety responsibilities and should then set out details of:
- the organisational and management structure for health and safety, including the responsibilities of particular managers and other employees for health and safety matters
- the consultative structure for health and safety, setting out the ways in which the employer will consult employees and safety representatives
- the procedures to be followed and the standards to be reached in order to ensure that the employer’s responsibilities for health and safety are met
- the arrangements for monitoring and review
- any supplementary statements to be implemented and followed in particular parts of the employer’s organisation.
Premises standards in academies
Set out below are the key requirements of the Education (Independent School Standards) (England) Regulations 2010. In addition, general standards as set out in the Workplace (Health, Safety and Welfare) Regulations 1992 apply to academies in the same way as they do to schools. See NEU health and safety briefing Standards for School Premises.
Key requirements of the Education (Independent School Standards) (England) Regulations 2010
a) Suitable toilet and washing facilities must be provided for the sole use of pupils.
b) Separate toilet facilities for boys aged eight or over must be provided except where the toilet facility is in a room that can be secured from the inside and that is intended for use by one pupil at a time.
c) Suitable changing accommodation and showers must be provided for pupils aged 11 or over at the start of the school year who receive physical education.
d) Separate facilities provided for pupils who are disabled may also be used by other pupils, staff, volunteers and visitors.
e) There must be suitable accommodation to cater for the medical and therapy needs of pupils, including:
- accommodation for the medical examination and treatment of pupils
- accommodation for the short-term care of sick and injured pupils, including a
- washing facility and nearby toilet
- where a school caters for pupils with complex needs, additional medical
- accommodation which meets those needs.
f) The accommodation may be used for other purposes, apart from teaching, so long as it is always available for the purposes described above.
g) Acoustic conditions and sound insulation must be suitable, having regard to the nature of the activity which takes place in each room or space.
h) Lighting in each room must be suitable, having regard to the nature of the activities that normally take place.
i) External lighting must be provided to ensure that people can safely enter and leave the premises.
j) Suitable drinking water facilities must be provided.
k) Cold water supplies that are suitable for drinking must be clearly marked as such.
l) The temperature of hot water at the point of use must not pose a scalding risk to users.
Academy safety committees
Academy safety committees should be established wherever possible. Where the governing body is the employer (in stand-alone academies) they are legally required to establish a safety committee when requested to do so in writing by two safety representatives. Where the governing body is not the employer (ie in academies which are part of a chain) it is still good practice to establish school-level safety committees, and health and safety advisers should urge health and safety representatives in academies to pursue this vigorously. See health and safety briefing School Safety Committees.
Where the academy is part of a chain, the responsibility for establishing an employer-based safety committee lies with the academy trust. Depending on the location of the trust’s academies, it is likely that it would be more appropriate for an NEU local officer or official to attend these meetings.
Asbestos management in academies
The NEU and the Joint Union Asbestos Committee (JUAC) have concerns that increasing academisation will lead to poor asbestos management in academies and will put staff and pupils at risk. When a school converts to academy status, they lose the support of the local authority as the duty holder under the Control of Asbestos Regulations 2012. The employer (governing body in stand-alone academies or academy trust in those which are part of a chain) takes on full responsibility for managing the asbestos in their premises.
The NEU is concerned that many academy sponsors will have little or no experience in managing asbestos, and will not be fully aware of their responsibilities and what is required of them as duty holder. JUAC has produced a guidance document – The role of the duty holder and local duty holder for asbestos management in academies for academy duty holders which contains a number of checklists for when conversion is being considered and has taken place to ensure that they are meeting their duties under the asbestos regulations. NEU safety reps and health and safety advisers are strongly encouraged to share this document with academy sponsors, and to use it to check whether correct procedures are being followed in academies.
Health and safety advisers – access to academies
Where schools share the same employer, NEU health and safety advisers who are also safety representatives are entitled by law to undertake inspections in schools other than their own.
The situation is slightly more complicated where the local authority is not the employer, for example in academies. Governing bodies of academies and academy trusts are not obliged to permit NEU health and safety advisers who are not employed there to undertake inspections. This does not prevent the academy employer from agreeing to afford the health and safety adviser the rights of inspection which would apply to union safety representatives employed at the academy.
The situation is comparable when union safety representatives are not employed by the local authority. The authority and head teachers within local authority maintained schools are not obliged to recognise such safety representatives in relation to employees within their schools. Again, there is nothing to prevent local authorities and head teachers from agreeing to do so, as if they were employed at a local authority maintained school. An agreement to this effect between the local authorities and the union will be binding upon head teachers employed by the local authorities under their statutory conditions of service.
It is recognised that some academy governing bodies and trusts will object to one of their employees spending time on union business relating to another employer and their staff. However, under recent delegation of funding arrangements for maintained schools, many local authorities have a mechanism for academies to ‘buy into’ their facilities time ‘pot’. This means that, for a specified cost (usually in the form of an amount per pupil), academies are able to draw on the local authority pooled funding for facilities time; this would include the cost of supply cover while a union safety representative based at the academy carried out their duties.
The NEU would argue that there is much to be gained by schools and local authorities adopting a flexible approach in this regard, given the potential for employers to benefit from the health and safety expertise of NEU-trained health and safety advisers. Precise arrangements will be the subject of local negotiations, supported by NEU regional/Wales offices as appropriate. See the NEU health and safety advisers briefing Advice on Facilities Time.
Action points for when conversion has taken place
Despite best endeavours, in many cases a decision will be made to convert to academy status. Where this is the case, there are a number of steps which can be taken to mitigate the effects from a health and safety point of view.
NEU health and safety advisers should:
- seek to appoint an NEU health and safety representative, where one is not already in place. Trade union recognition is a form of collective agreement that transfers under TUPE and recognised trade unions have the right to appoint safety representatives. Where no-one is willing, urge that the NEU representative takes on the role, so that someone is able to exercise the rights.
NEU health and safety representatives should:
- inform their local division secretary, unless they have already been involved
- make sure they have seen the asbestos management plan and survey for the academy. Check whether the new employer has commissioned their own surveys. Use the JUAC checklist in the document, The role of the duty holder and local duty holder for asbestos management in academies, to confirm that the new duty holder is meeting all of their responsibilities in regards to asbestos management.
- seek to obtain an undertaking that the new academy will work collaboratively with local authority schools, buying into the local authority facilities time ‘pot’ wherever possible
- actively recruit as many new NEU members as possible
- ask the school to provide a breakdown of the health and safety responsibilities that it has taken on, to ensure that there is full awareness
- establish a trade union academy health and safety committee, where this does not already exist. It is better to seek to ensure that as much machinery as possible is in place pre-conversion, although there is no reason why such a committee cannot be set up post-conversion. See the detailed NEU briefing School Safety Committees (neu.org.uk). Co-ordination with representatives from other recognised trade unions may be needed as the request to set up a safety committee must come from two health and safety representatives.
- inform the NEU health and safety adviser of any health and safety incidents within the academy.
The importance of appointing health and safety representatives when academies are established
The issues detailed below highlight how important it is for there to be an NEU safety representative in every academy that is established.
Union health and safety representatives enjoy a number of rights:
- to investigate hazards, dangerous occurrences and accidents at work
- to investigate complaints by employees they represent
- to make representations to the employer on any health, safety or welfare matter
- to carry out workplace inspections
- to be consulted by the employer on any measures or initiatives which may affect employees in the workplace
- to inspect and take copies of documents relevant to health and safety
- to be given time off with pay to perform their functions
- to be given time off with pay to undergo training.
It is important that someone exercises these rights on behalf of NEU members working in academies.
Health and safety is not a ‘niche’ area. It is not just about slips and trips and classroom temperatures, important though these are. A union health and safety representative can use his/her rights to address issues of workload, stress and bullying – areas that would otherwise be dealt with by the NEU school representative. Where this is this case, it makes sense for an NEU school representative to officially become the health and safety representative too, and benefit from the additional rights that the role provides.
It is worth noting that union safety representatives have no legal duties beyond those of any employee, so they cannot be held responsible for a failure to spot a hazard during an inspection.
NEU health and safety representatives in academies can, like any other union health and safety representative, obtain support on any aspect of their role from their division or association health and safety adviser, or from their regional/Wales office. A wide variety of support materials is available from the health and safety section of the NEU website. There are a variety of health and safety briefings available here.