Vigilance after the transfer
After a transfer it is just as important to know what your rights are, so you can act collectively to safeguard these rights with your new academy employer.
If your school or college has already become an academy and you believe that full consultation has not taken place, contact your branch secretary or NEU contact as it may be possible to bring an Employment Tribunal claim.
If your school or college has already become an academy, or your academy has transferred to an established multi-academy trust, and your new employer is now trying to change your terms and conditions, contact your branch secretary or NEU contact urgently.
Beware of subtle attacks on TUPE rights!
Where a two-tier set of conditions develops, it is important to maintain vigilance to protect the terms of those employees who transferred to the new employer. Some academies have attempted to undermine transferred teachers’ terms and conditions by “harmonising” the two contracts. Often this has been attempted through individual conversations or letters to employees.
Harmonising the terms and conditions of staff who transferred before 31 January 2014 would be unlawful. Such “harmonisation” would be a “transfer” related reason even several years after the transfer. In any event, an employer could not impose changes to terms and conditions without agreement – whether under TUPE or not – it must consult and negotiate first. Employers are entitled, however, to seek to negotiate changes to terms and conditions deriving from collective agreements where the transfer takes place on or after 31 January 2014. The changes will be lawful provided they are agreed, they are not less favourable overall for the affected staff and they come into effect at least a year after the transfer.
In practice, for any new terms to be no less favourable, employers would have to offer a very valuable package of terms and conditions in return for giving up, for example, the Burgundy Book maternity or sick pay scheme.
It is far easier to resist proposed variations to contracts of employment if members act collectively. If at any time you find out that management is approaching members about signing new contracts, you should act immediately.
- Contact your branch secretary or NEU contact
- If possible call an emergency meeting of members
- Explain that they aren’t compelled to sign new contracts, and that if everyone acts together in saying “no”, you are likely to be successful
- Consider drafting a letter with members to management, stating that as a union group you reject the proposed changes.
Acting collectively in such a way will give individual members confidence (especially if they feel as though management is pressurising them), and it will also send a strong, clear message to management.
Defending common national terms for new joiners
TUPE offers protection to current employees at the point of transfer. It does not provide any guarantees that new joiners to the staff team will be offered the same contractual terms as their transferring colleagues.
There are obvious problems with such a situation. Over time a “two-tiered” workforce may evolve, separating those with TUPE protected rights and those staff members employed post-transfer. If the academy is proposing to offer different terms and conditions to newly appointed staff, you should contact your branch secretary or NEU contact for advice.
Try to prevent this situation arising, the NEU, along with other TUC-affiliated education unions, has produced a model arrangement for the new academy trusts to adopt. Amongst other things, this stipulates that there will be a common set of terms for each category of staff.
The model agreement is looked at later in this toolkit but there are a number of additional ways in which you and your branch might be able to safeguard the rights of new staff joining the academy post-transfer. For example, divisions have negotiated new collective agreements with their local authority in the run up to conversion, providing for these to transfer over and apply to all staff in any academy. These arrangement apply to staff in schools that become academies.
The union has prepared a model paragraph you can ask to be inserted into staff contracts before transfer, and one that the new employers can be urged to include in academy contracts after transfer. These are attached in Resource B along with a standard letter to send to the head teacher which asks the governing board to formally agree that all staff will be employed on national terms and conditions.
Working with your branch secretary or NEU contact, you can also seek to be innovative in building in protections for the future. You can seek benefits for staff in the academy by negotiating a specific agreement with the academy employer that all service prior to joining the academy will count for the purposes of determining pay increments and entitlements to occupational sick leave and maternity leave and pay.
Some academies have agreed to have a significant number of staff governors.
One local secretary succeeded in achieving a resolution of a governing body that a large majority of the governing body would be required before any staff could be offered terms other than the transferred contractual provisions. To benefit teachers who subsequently return to local authority employment after having worked at an academy, some local authorities have agreed to count academy service towards a teacher’s continuous employment to calculate maternity leave and pay entitlements.
It’s never too late to negotiate agreements – even after transfer. Please talk to your branch secretary or NEU contact about how to achieve such protections. The Union can publicise these achievements to help others.
Protecting and building your union
Throughout this toolkit we have referred to the TUC model recognition agreement for academies. A copy of this can be found in Resource D.
TUC Model agreement for academies
The TUC model agreement sets out a series of guidelines on how the academy should negotiate with trade unions, what facilities for union representatives should be established, and also a guarantee to ensure all future staff are entitled to the same terms and conditions as those staff who transfer to the new employer.
As representative you should discuss the model agreement with NEU members and representatives from other unions that may have members in your school or college. Once members are made aware of the importance of the agreement you should approach your head teacher and ask that the governing board adopt the agreement. This should happen before transfer if possible.
Given the document itself is fairly lengthy, the governors may want some time to read and consider its implications. You should stress that the great strength in the agreement is that is maintains continuity in existing relationships and codifies in a clear way expectations in terms of future relationships. This will aid in valuing the professionalism of staff by giving them a voice in the workplace and ensuring consistency around the terms and conditions. The NEU places great importance on getting the academy to adopt the TUC model agreement. However, it may be the case that, for whatever reason, the academy does not wish to do so. If this is the case then there are several options open to you and your members.
- Firstly, you should seek to talk through any issues with your head teacher, principal or governors. It may be that they simply need reassurance that this document is about establishing a stable and clear understanding and relationships between unions and management
- Secondly, if they still refuse to adopt the agreement then you should seek advice from your branch secretary or NEU contact. It may be possible, after speaking to the NEU, members and other union representatives, for agreement to be modified to take into account specific concerns raised by the governors
- Thirdly, if the governors simply refuse to adopt the agreement or to negotiate around the issue of adopting an agreement, then industrial action is a possibility. Any industrial action would need the backing of NEU members and could not be contemplated without first speaking to your branch secretary and regional office.
Where the new governing board is resistant to adopting the TUC model agreement or any variation of it, it is important that other possibilities are explored and, where possible, the following should always be covered in a local agreement:
- a regular forum for negotiation and consultation
- time off with pay for trade union duties, and participation in local authority arrangements
- facilities for trade union activity – e.g., being able to hold meetings for members in the school or college, and the use of notice boards and email system for communicating with members.
Arrangements for facility time
Facility time is time off with pay to undertake trade union duties and activities.
Academies have a legal obligation to provide facility time to trade union representatives for duties undertaken in respect of academy employees.
The DfE advised in 2014, “Following a TUPE transfer, an academy should comply with any existing facility time agreement until they give notice that they want to end or re-negotiate this agreement.”
The most straightforward way of doing this is for academies to “buy back” into local facility time arrangements by making a contribution to the local authority facility time budget. This will enable the academy to receive reimbursement for supply cover costs for local officers employed by the academy.
The TUC Model Agreement for Academies sets out acceptable arrangements for facilities for union representatives. If your academy does not wish to adopt the agreement as a whole, it is worth attempting to persuade the academy to agree to the key principles in respect of trade union recognition and facilities, set out in the TUC Model Agreement for Academies – Guidance Note & Key Principles, (see Resource D) which is supported by the school workforce unions and the NAHT. Funding facility time
The point of transfer is an ideal time to urge academies to participate in local facility time arrangements.
The letters to academies in Resource E set out the arguments retaining central funding by the local authority for the costs of supply cover relating to trade union facility time. In liaison with your secretary or NEU contact you can ensure that the appropriate letter is sent to your new employer.
Where there is no local facility time pot, you may use letter B5 to urge your schools at the point of transfer either to set up a school facility time funding arrangement or to lobby the local authority to establish a pot.
Where these is a local pot, you may use Letter B6 to urge your school to participate in local facility time funding arrangements. If you transferred some time ago, you may use Letter B3b, to urge your academy to participate in buy-back arrangements established by the local authority.
Shaping the future of your school
Much of this toolkit has talked about using the TUPE process to protect members who transfer to the academy. It is vital that throughout this period we, as a union, are as proactive and involved in the process as possible, and that we monitor the situation after transfer. We want to shape events not be shaped by them. Key to influencing the transfer process is to ask questions, make representations, and most importantly of all, to show to management the strength of feeling and level of engagement of members in the workplace.
However, as well as trying to ensure the legal process is followed in as transparent and open a way as possible, and moulded as best it can to deliver for members, as a union we need to be proactive in developing a strong collective presence.
You can do this by meeting with the head teacher or principal on a regular basis as stipulated in the model agreement.
You should where possible meet with members beforehand to inform your discussions. If members have issues of concern, they need to be discussed collectively if appropriate and then raised and hopefully resolved through negotiation.
Bear in mind that when you are talking with the head teacher or principal, you are speaking as a representative of and on behalf of all NEU members, and that you have the strength of the membership behind you. Remember to keep in constant dialogue with your local secretary or NEU contact. They are there to help and support you and have a wealth of knowledge and expertise you can tap into - never be afraid to get in touch.
Thank you for taking the time to read this guidance document. As an NEU representative you play a vital role in ensuring that teachers have a voice in the workplace. We hope you find the role enjoyable and rewarding, and please remember that any contribution to ensuring the continued success of your union is greatly appreciated.
You will find more information and support materials to help you carry out your role as a representative in the NEU Reps Guide which, if you don’t already have a copy, should be available from your local branch secretary.
By working together we can make a difference!