NEU Guidance for Reps and Local Officers
Health and safety is a priority for all unions, including the NEU. It is one of the major reasons why workers want unions in their workplace and why they join a union in the first place.
Too often health and safety can be seen as a specialist or `niche’ area, somehow separate from other areas of union activity. This should not be the case as it affects everyone in the workplace.
In terms of the campaign against academies, there are plenty of strong arguments (listed below) as to why health and safety could be adversely affected by conversion to academy status, arguments which could prove persuasive to school management, governors, teachers and parents.
This document is aimed at NEU health and safety advisers, and NEU health and safety representatives in schools threatened with academy conversion. It examines the arguments that can be put forward in opposing conversion to academy status. It also looks at what action needs to be taken where, despite all efforts, conversion is about to take place. The follow-up document – Ensuring Effective Health and Safety in Academies – will help support NEU health and safety advisers and health and safety representatives in maintaining high standards post-conversion.
Impact of increasing academisation on school health and safety
The Government’s intention is for all schools to become academies. Despite the U-turn over forcing schools to become academies, the Education for All Bill will allow the Government to force schools in ‘underperforming’ or ‘unviable’ local authorities to become academies, and the Government has confirmed its continued commitment to making all schools into academies.
The health and safety arguments against forced conversion for individual academies are just as relevant in the campaign against forced academisation. Indeed, there are likely to be additional health and safety implications as more schools convert and these are also addressed below.
1 - Loss of `employer’ protection from the local authority
It is often stated by Government, and repeated by the media, that schools are clamouring to be `free’ of local authority control or `interference’. Schools have in fact enjoyed high levels of autonomy since the introduction of local management back in 1988, and in respect of health and safety in community schools, the overall responsibility of local authorities for health and safety has only served to lessen the burden on schools.
Where a local authority is the employer, it has responsibilities under the Health and Safety at Work etc Act 1974 to secure the health, safety and welfare of employees in that school, as well as an obligation to protect others (pupils, parents, visitors) from risks to their health and safety arising from the activities of people at work.
Conversion to academy status will leave full health and safety responsibility with the academy trust for academies in a chain or the governing body for stand-alone academies, with no routine inspections undertaken, and no advice available from local authority safety officers.
The NEU has repeatedly raised concerns about safety management in schools, even where there is a local authority to fall back on. The situation is likely to be even worse where there is no support from the local authority. If universal academisation goes ahead, the additional health and safety responsibilities could be particularly damaging for small primary schools, many of which are still under local authority control. Small schools may not have the capacity to address the additional responsibilities that come with being an academy.
Given that the Health and Safety Executive (HSE) no longer undertakes routine inspections in schools, there will be problems monitoring whether academies are meeting their legal obligations in respect of health and safety. The fact that previous HSE targeted inspections have focused on schools outside of local authority control does, however, show that it has concerns about health and safety management in such schools.
Even where intentions are good, will the knowledge and expertise be available? Currently, some local authorities allow academies to buy back health and safety services. However, if all schools were taken away from local authority control, it is likely that many local authorities would close their health and safety departments altogether. Many academies would have to rely on commercial health and safety consultants, which would be costly and with no guarantee of quality or relevance to an education setting.
Schools converting to academy status will need to take out compulsory employers’ liability insurance. This covers the employer if staff are injured or become ill because of their work. Employers can be fined if they do not hold a current employers’ liability insurance policy which complies with the law.
2 - Asbestos management implications
The additional responsibilities taken on by academies include managing the asbestos which is present in over 85 per cent of schools.
Under the Control of Asbestos Regulations 2012, the employer as duty holder has overall responsibility for ensuring that asbestos is correctly managed in all its premises. In academies which are part of a chain the employer is the academy trust, and in stand-alone academies the governing body. Prior to conversion, the duty holder for maintained schools is the local authority, and they take on overall responsibility for asbestos management in schools. Academies lose this local authority support and take on significant additional responsibilities in regards to asbestos management.
A concern is that some academy sponsors will not be experienced in this area and will not be aware of their responsibilities. Poor asbestos management could lead to pupils or staff being exposed to asbestos fibres.
Academies are likely to find it extremely difficult, if not impossible, to purchase insurance to cover the risk of pupils developing asbestos-related diseases in the future. Although local authorities do not have this cover either, and effectively self-insure, academies will have fewer financial resources available to meet any future claims. Such claims are a very real possibility. In March 2011, the Supreme Court upheld an earlier Appeal Court judgment that Dianne Willmore, who died of mesothelioma in October 2009, had been negligently exposed to asbestos while a pupil at a school run by Knowsley Council in the 1970s. Compensation of £240,000 was awarded. This case is a reminder to all employers that, not only may they face future asbestos claims from employees/former employees, but also from former pupils. The effect on an academy’s budget of having to pay out compensation at this level could be devastating. Although the status of a school may change, in most cases the school buildings will not. This is a major problem affecting potentially thousands of children and large numbers of unsuspecting governors.
In response to pressure from the NEU and Joint Union Asbestos Committee (JUAC), the Department for Education (DfE) announced a scheme called the Risk Protection Arrangement (RPA) for academies. This allows academies to buy insurance cover via the DfE which, unlike commercial insurance, covers claims from former pupils who have developed asbestos related diseases from their exposure at the school.
In 2015, the DfE stated that around one third of academies were buying into the RPA scheme, which meant that the majority of academies were still uninsured for any claims from former pupils who contracted asbestos-related diseases after being exposed at the school. It is also unclear what would happen to the RPA scheme if all schools became academies, as the DfE has not given any indication that the scheme will continue indefinitely.
In light of these issues, JUAC has produced a document – JUAC Position on Academisation and Asbestos – which sets out the main concerns regarding increasing academisation and asbestos management. The document (available at: neu.org.uk) also contains a number of key recommendations for the DfE and HSE to address to make sure staff and pupils are not put at risk once the school becomes an academy.
JUAC has also produced guidance for duty holders if academy conversion is being considered or has taken place. The role of the duty holder and local duty holder for asbestos management in academies contains a checklist for potential sponsors, which highlights the key issues they should be aware of prior to taking over a school. For example, they should check whether asbestos surveys have been carried out and if they are of a suitable quality. The document includes checklists for duty holders in chain and individual academies, setting out their legal responsibilities for managing asbestos in their premises.
3 - No sharing of good practice or monitoring of issues via a local authority safety committee
The local authority safety committee brings together management and unions in a common aim of improving health and safety. For decades, unions have championed the concept that decisions about workplace health and safety should take account of the views and priorities of the workforce as well as the management. The HSE is also supportive of worker involvement, stating that health and safety management “should not be something which is done to staff, but with them”.
There is no reason why academy-based union safety committees cannot be established; indeed the union would urge NEU health and safety representatives in academies to pursue this vigorously. Lack of participation in a strategic committee seeking to address issues across all schools is likely to leave academies isolated.
4 - No right for a health and safety representative from a community school to undertake an inspection in an academy on behalf of NEU members
Where schools share the same employer, union safety representatives are entitled by law to undertake inspections in schools other than their own. Academies can choose to accept an inspection from a union health and safety representative from a neighbouring school, but there is no obligation upon them to do so. NEU members in academies without their own trade union safety representative will find it difficult to challenge the actions of the academy’s management at a time when that management will inevitably lack experience in managing health and safety.
5 - No automatic access to health and safety training provided by the local authority
Local authorities, because of their strategic role, are in a good position to assess what training is needed, to offer that training, and to encourage or insist upon its uptake. Academies, particularly where they are not part of a chain, will not be supported in this way, with inevitable consequences for staff and pupils.
6 - Loss of national pay and conditions could increase teacher workload and stress
The abolition of national pay and conditions for teachers would be a likely outcome of universal forced academisation as all academies are free to set their own terms of employment for teachers. At the moment, many but not all academies have similar pay and conditions for teachers to those in maintained schools. If there were no longer a School Teachers’ Pay and Conditions Document (STPCD), academies could try to drive down pay and conditions, and workload and working hours would rise, increasing the potential for work-related stress and mental health conditions.
The process of academy conversion
This section provides a very brief summary of the conversion process in order to explain when the union’s arguments to oppose conversion to academy status should be raised. For further and more detailed information on the conversion process and TUPE, refer to the Academies Toolkit on the NEU website, Protecting Members in Academies, which is aimed at NEU school representatives in those academies which are in the process of converting or have converted already.
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 which 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. 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 trust or governing body), keeping the same terms and conditions.
As well as providing for individual employees' 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 union recognition 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. This 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.
It is during the consultation stage that the above arguments can be raised by NEU health and safety advisers and health and safety representatives.
Action points for when conversion is about to take 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 secretary, unless they have already been involved
- seek to obtain an undertaking that the new academy will work collaboratively with LA schools, buying into LA services and facilities time ‘pots’ whenever possible
- actively recruit as many new NEU members as possible
- ensure that health and safety arrangements post-conversion is on the agenda for all meetings with members at which the forthcoming conversion will be discussed, as well as meetings with management. Issues for discussion will include where the academy will access its health and safety support, and the responsibility of governors, as well as the issues raised in the points above.
- ask the school to provide a breakdown of the health and safety responsibilities that it will be taking on, to ensure that there is full awareness
- ask the new employer for the asbestos management plan and survey for the academy to confirm that the new duty holder is meeting all of their responsibilities
- establish a trade union academy health and safety committee, where this does not already exist. It is better to try 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 NEU briefing School Safety Committees (neu.org,uk). The regulations governing the establishment of employer health and safety committee are set out at: tuc.org.uk/sites/default/files/BrownBook2015.pdf. The principles and regulations apply equally to academies. 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.