First, our strategy to defend the TPS is industrial. Members have learnt from experience that our most powerful and effective weapon is our right to withdraw our labour.
NEU members have successfully defended their right to TPS, in many independent schools, using the leverage of industrial action.
As part of the campaign, members should consider other tactics such as engaging with parents and eliciting the support of alumni. Schools are wary of reputational damage.
It is helpful to be aware of the legal parameters in respect of pension regulations and contract.
In most instances, the employer will be breaching the contract of employment to remove the TPS. As such, employers follow a set legal process to defend against potential breach of contract claims.
Understanding the process the employer is following, and why, helps us challenge key aspects of their case. Understanding the timeline helps us challenge at various stages. And remember that if at first you don’t succeed, try, try, again!
NEU will robustly support members taking action to defend their terms and conditions.
- Leaving the TPS is a lengthy process. There are two distinct phases.
- The first stage is the requirement under the Pension regulations to consult members of the scheme of a proposed change.
- Typically, this includes laying the groundwork for subsequent contractual change.
- The second stage is contractual notice.
- Employers often seek to fire staff and mitigate any claim by rehiring on inferior terms.
- Often, employers treat the process as a tick-box exercise.
- If an employer fails to adequately satisfy all the steps, they will be open to legal challenge.
- Members should act early and robustly, giving no succour to the employer.
- Take all opportunities to raise substantive challenge on the various aspects of the process. It will worry the employer.
- Lawyers acting for employers recommend that one year should be set aside for this process. Though often employers will seek to complete the change in less time.
- NEU believe that consultation required under the Pensions regulations should be a minimum of 90 days. If less, it raises the question as to whether the consultation is meaningful (see below).
- Once the consultation with staff has ended, if agreement has not been reached, the employer can only enforce the change by terminating the contract.
- Contractual notice is usually one term, given before the last term you are expected to work.
- Withdrawing our labour is always a difficult decision but, the value of the TPS warrants it.
- The TPS is a fundamental part of a teacher’s contract and remuneration.
- Striking is also a proportionate response to the threat to fire and rehire you.
- NEU recommends that members ballot for strike action as early as possible in the process.
- The threat of strike action is important leverage.
- This obviously takes a little planning. See the Action Plan for the steps to take.
- If the NEU is not recognised, NEU recommend members include recognition in the dispute.
- Members should contact their NEU Regional Office who will advise.
- Your employment contract is a legally binding agreement between you and your employer.
- Neither party can unilaterally change the fundamental terms of the contract.
- Terms can be changed by agreement, which is why employers state at the outset that they want to reach agreement. It is rare for this to happen for obvious reasons.
- For many, the right to belong to the TPS is explicitly stated in their contracts of employment.
- For others, the right has been firmly established by custom and practice over many years.
- Even where there is doubt, lawyers acting for independent school employers advise them to treat the TPS as contractual and to follow the standard legal process.
- To unilaterally enforce contractual change an employer often “fires and rehires” staff.
- Removing the right to the TPS is material breach going to the root of the contract.
- The TPS is a significant part of remuneration and a fundamental part of the contract.
- A breach of contract can potentially give rise to a claim for compensation or other remedies.
- Employers seek to establish a defence to a breach of contract by making a business case, meaningful consultation, mitigating the loss, and giving contractual notice.
- The Regional Office will advise on breach of contract claims worth pursuing in the courts.
- As part of seeking to justify a breach of contract, the employer sets out a business case.
- If finances are tight, the case is stronger. If the school is wealthy, the argument is weaker.
- Typically, a business case focusses on cost, risk, and impact on the individual.
- There might be an impact assessment of the proposed changes for the affected employees.
- The financial imperative is core to the argument and members should interrogate it.
- Are the “economic headwinds” real and present, or speculation?
- Is the TPS unaffordable or do they simply want to spend the money on something else?
- See the NEU action plan for guidance on challenging the financial argument.
- Attracting, retaining, and motivating quality staff is mission critical to a school. So, the reward strategy is core to the business case. If the employer asserts that staff want choice, flexibility etc. The challenge is to ask, where is the evidence? Have staff been asked?
- NEU is opposed in principle to phased withdrawal and encourage members to oppose wherever possible.
- We believe that all teachers should enjoy the benefit of TPS.
- We are concerned that phased withdrawal might be a temporary reprieve, with the employer returning later when numbers to resist have dwindled.
- Whenever possible, NEU encourage members to oppose it.
- Members should contact their NEU Regional Office who will advise.
- When there is a breach of contract, there is a duty to mitigate loss.
- All reasonable steps to minimise the detriment should be taken.
- Employers will seek to extol the virtues of the proposed alternative pension scheme.
- Use the NEU guidance on defined contribution schemes to challenge these assertions.
- Staff reward is something you can challenge with employers overselling flexibility & choice.
- Have they asked staff? Mostly likely not for obviously reasons.
- Firing and rehiring on inferior terms is one way of seeking to mitigate the employee’s loss.
- Consultation is a requirement both in respect of both pension schemes and contract.
- It must be genuine and meaningful.
- Many employers undertake it as a tick-box exercise with the outcome already decided.
- Many rule out other options before the consultation.
- Others conduct consultation under duress by the threatening of the sack if staff don’t agree.
- Some go as far as serving a section 188 notice [see below] before the start of consultation. This is clearly prejudicial to open and genuine staff consultation.
- The above make them vulnerable to the challenge that it is not meaningful consultation.
- Members should challenge in writing any aspect they do not consider to be meaningful.
- The elements of what NEU consider to be meaningful consultation are listed in the NEU model letter on meaningful consultation.
- Before consultation commences, put the employer on notice by sending the model letter.
- Fire and rehire is when an employer seeks to make unilateral change to contractual terms by terminating employment but then and rehiring (on inferior terms) to mitigate employee loss.
- It is a draconian practice which NEU believe has no place in modern employee relations.
- It undermines the concept of a contract, staff morale, and galvanises many to take action.
- It causes reputational damage and aggravates many parents.
- NEU members in independent schools have been prominent in the national campaign to outlaw this pernicious practice.
- Although the campaign has yet to fully succeed, the government has introduced a Code of Practice on Dismissal and Re-engagement.
- Often collective notice is given under Section 188, Trade Union & Labour Relations (Consolidation) Act 1992.
- Most Independent school teachers have a term’s contractual notice, usually to be given before the preceding term starts or by specified dates.
- A typical example is: at least one term's notice in writing, to expire only on 31 December, 30 April, or 31 August and to be given on or before the first day of term on which you are required to attend for work.
- NEU recommend that members ballot for strike action at the start of the consultation. If, however, you have not already done so, then there is further opportunity at this stage.
- As always, contact your NEU Regional Office who will advise.
