As part of the 2016-18 pay deal, the local government employers and the recognised trade unions agreed to conduct a joint review of term-time working to consider a national approach “to deliver fair, consistent and transparent contracts for school support staff”.
An initial section of guidance has now been agreed and covers the following issues:
- Guiding principles on calculation of pay and annual leave (including advisory model calculation)
- Designation of annual leave
- Calculation of redundancy pay
- Termination of employment or contractual change part way through leave year
- Payment for overtime and additional working hours
- School closure periods (including public holidays, special leave, public duties)
- Training and career development
- Participation in trade union activities and duties
The guidance will be incorporated as Part 4.12 into the next updated version of the National Agreement (‘Green Book’). It is intended in due course to issue further guidance relating to sickness and maternity, maternity support, adoption, parental and shared parental leave and pay for term-time only employees.
We would specifically refer members and Reps to the following paragraphs:
4.2 – Calculation of pay. Schools should be asked to confirm how TTO pay is being calculated, and to ensure that the calculation is included in the Statement of Particulars of Employment.
4.4 – Advertising of posts. The habit of some schools of advertising the FTE rate of pay, instead of the actual, TTO one, is now officially outlawed.
4.5 – Pay for additional hours. This is a welcome restatement of the official position on occasional and regular additional hours worked. And Paragraph 11.1 confirms that additional non-standard hours worked should be compensated at the appropriate overtime rate (See Green Book Part 3, Paragraph 2.3).
4.6 – INSET. This clears up any ambiguity about whether INSET days are working, paid days. This means that if you are a full-time employee in term-time, then the appropriate overtime rate should apply.
And as you will see, there are many other positive aspects to the guidance.
The guidance recommends that employers review their term-time only working policies and pay and leave calculations to ensure that they are consistent with the principles outlined in this guidance, and consult with recognised trade unions about any proposed changes.
Support staff members should liaise with their school Rep or Contact, or in the absence of one, with your Branch Secretary, to ensure that the school conducts the review in a timely manner.
Back pay claims for Term-Time Only (TTO) support staff
A number of District and Branch Secretaries have been in touch recently with NEU HQ regarding their LAs’ position on back pay for previously calculating holiday pay inaccurately for TTO staff and seeking further advice as to how to approach the matter.
In the case of the Harpur Trust -v- Brazel & UNISON the Court of Appeal held that regardless of how many weeks of the year school staff work he/she is entitled to 5.6 weeks holiday pay as per the Working Time Regulations (WTR).
Previously, annual leave for TTO staff was pro-rated at 12.07% of an employee's annual salary as this represented the number of weeks in the year that is taken up by statutory leave (5.6 weeks) and then multiplied by the number of weeks the employee actually worked in the year. The Court of Appeal found that there is no provision in the WTR to pro-rate holiday pay. Therefore, the pro-rate of holiday pay for TTO staff was found to be unlawful.
NJC guidance (New Green Book 4.12) and guidance on the Government’s website has been updated to reflect this development in the law but is silent on back pay. Members are entitled to back pay as the previous pro-rate calculation was found to be unlawful. Although the Harpur Trust has been given leave to appeal to the Supreme Court, the law as it stands due to the Court of Appeal decision is that TTO staff are entitled to the legal minimum of 5.6 weeks holiday pay per year.
Since the Court of Appeal decision, some LAs have reached agreements with the recognised unions (Unison, GMB and Unite) on backpay compensation of up to six years, but in others the Unions are now threatening legal action in the absence of agreement. But in most LAs, there does not appear to have been any action or discussions at all around the issue.
Although the NEU has many thousands of support staff members affected by this issue, we are not directly involved in any local discussions which may have taken, or are taking, place.
Nonetheless, despite the absence of formal trade union recognition for support staff, the NEU should seek to represent our members to the best of our ability, in terms of ensuring that discussions are taking place on the matter and communicating the current position to our support staff members, via email, newsletters, etc.
District and Branch Secretaries should therefore follow this staged approach:
- Liaise with the recognised Unions and the LA HR, to find out the exact position in local negotiations.
- If the talks are moving, or have moved, to a conclusion, ensure that our support staff members are fully informed of the details of any deal, but offer no comment on said deal, other than to say that "the recognised Unions have reached etc etc."
- If no deal is in sight and the recognised Unions are contemplating a legal challenge to the LA, contact members to ask them to identify themselves if they believe they are affected.
- If there have been no discussions at all between the LA and the recognised Unions, ask the recognised Unions why this is, and if necessary write to the LA HR asking for a statement of its position on the matter.
- Keep a record of those TTO members who reply in case any further steps need to be taken to protect the members’ position. However, at this stage there is no immediate need to do anything more than that.
MAT negotiators should take a similar approach to that outlined immediately above.
If you have any queries in relation to this matter, please contact Peter Morris, National Official for Support Staff, at firstname.lastname@example.org.