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Support staff: Term-time working

An initial section of guidance on term-time working has now been agreed between the local government employers and the recognised trade unions.

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 has been 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.

Holiday Pay for Term Time Only (TTO) support staff - State Sector

The Harpur Trust v Brazel Supreme Court Judgement, issued in July 2022 upholding a 2019 Court of Appeal decision, confirmed the legal necessity of ensuring that all staff engaged on term-time only (TTO) contracts are paid for the correct number of weeks’ holiday pay.

The 2019 Court of Appeal decision led some LAs to reach agreement with the recognised unions (Unison, GMB and Unite) on backpay compensation, while in some LAs, Unions threatened legal action where agreement could not be reached. Also, notwithstanding the Court of Appeal judgement, some employers had continued to fail to address the issue at all.

However, the law is now entirely settled, and this means that all permanent employees/workers (with limited exceptions in the first and final year of employment) are entitled to be paid for at least 5.6 weeks’ leave each year regardless of how many weeks they work each year. Employers who, in spite of the Court of Appeal judgment, have continued to calculate holiday pay entitlement by reference to 12.07% of pay or any other formula for work done over the course of a term will now, following the Supreme Court’s judgement, need to ensure that they:

  1. Calculate the TTO worker’s pay in line with their legal right to 5.6 weeks’ holiday pay as determined in the Supreme Court judgement.
  2. Make good any past shortfalls arising, as any new calculation for TTO staff will necessarily give rise to an underpayment as compared with entitlements under the Working Time Regulations (WTR).

There has been a lot of press coverage of Harpur Trust v Brazel and we anticipate that Branch and District Secretaries may already have been contacted for advice regarding ensuring that the LAs in their areas have now corrected any incorrect holiday calculations in line with the Green Book Part 4.12.

The NEU

Although the NEU has many thousands of support staff potentially affected by this issue, we were generally not directly involved with local negotiations/discussions arising from this clarification of TTO staff holiday entitlement following the Court of Appeal judgement.

Notwithstanding this lack of input via formal negotiating structures, the NEU remains keen to ensure that our TTO members are supported to the best of our abilities with regard to this matter, if it remains unresolved despite the Green Book guidance.

Action for District and Branch Secretaries

  1. Liaise with the recognised support staff unions and local authority/MAT HR to ascertain the position as regards local negotiations/resolution of the issue.
  2. If matters are resolved, ensure that any of your support staff members are fully informed of the details of any deal without offering any comment on the deal, other than to say “the recognised unions have reached a deal… etc’
  3. If no deal appears to have reached and the recognised unions are considering a legal challenge to the LA, contact members to ask them to identify themselves to you if they believe their holiday pay has been calculated incorrectly.
  4. And given the considerable time that has elapsed since the Court of Appeal decision, if it appears there have still been no discussions as yet between the LA and recognised support staff unions ask the recognised Unions why this has not been addressed and write to the LA asking for a statement of its position on the matter.
  5. If you are contacted by TTO members in LAs where the employer has made no attempt to resolve this issue, please seek further advice from Peter Morris, National Official for Support Staff at [email protected].

MATs

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 [email protected]

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