Blake lapthorn academies conference - September 2011

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Blake Lapthorn held two half day Acadmies conferences jointly with Strictly Education on Tuesday 13 and Friday 16 September 2011.

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Blake lapthorn academies conference - September 2011

  1. 1. Blake Lapthorn Academies seminar Tuesday 13 September and Friday 16 September 2011
  2. 2. Welcome Elizabeth Davis, Partner
  3. 3. Blake Lapthorn Education service South’s premier full service law firm Education: – Schools and FE service (includes nursery) – Higher education service Main areas of work – Corporate and commercial, – Governance, – Employment, – Property and construction and – Disciplinary and regulatory
  4. 4. Academy pros, cons and conversion process Elizabeth Davis Partner elizabeth.davis@bllaw.co.uk
  5. 5. Track record First conversion in Hampshire Advised on completed conversions for 15 schools 7 local authority areas Act for 1 local authority on academy conversions Advise 3 large faith based organisations Advising 25 schools towards conversion
  6. 6. Academy pros, cons and conversion process The legal background Pros and cons Understanding the conversion process – Timetables and deadlines – Documentation – Common pitfalls
  7. 7. Academies Act 2010 Academy arrangements with the Secretary of State – An academy agreement – Arrangements for academy financial assistance Academy agreement – Undertakings – Payment in consideration of undertakings Undertakings – Establish an independent school with Specific characteristics or School to provide for special educational needs
  8. 8. Pros Independence Autonomy Income generation Greater freedom – Staff – Curriculum – Organisation Motivational Political direction
  9. 9. Cons Diminishing LA support Loss of bulk purchasing New responsibilities and duties – Obligations to S of S – Company and charity law Questionable financial advantage Burden of conversion process Burden of autonomy Opposition Cost Freedom of Information and public procurement obligations Any others…?
  10. 10. The application process Application for an Order Consultation with foundation or trust (if applicable) before making application Consultation with community and local authority Application requires the consent of the trustees of the school and the persons by whom the governors are appointed Secretary of State indicates willingness to make order Draft documents submitted and approved by the DFE according to strict timetable Secretary of State makes the Order
  11. 11. Documents submitted to DfE Articles of association of Academy Trust Company Funding Agreements(s) Report on title Draft lease and or Directions for transfer
  12. 12. Land issues Identifying the land and locating the deeds Investigating title Site plan Lease /Directions for Transfer Report on title Shared use Publicly funded land
  13. 13. Structure Single or multi academy? Joining an existing academy Converging with an existing academy school Is there a special diocesan or other framework?
  14. 14. The process to completion Academy Trust Company formed Governors resolutions Signing and submission of formal documentation Commercial transfer process Registrations and other business to set up the new academy Funding agreement signed Conversion on a specific date Transfer of surplus
  15. 15. Understanding the conversion process On conversion, current governing body is dissolved Current school has to be transferred to a new Academy Trust Company Agreements must be made and signed up before conversion point
  16. 16. The commercial transfer Legal assessment Engagement with the local authority Establishing the new business framework Commercial transfer agreement Transfer of existing staff and operations Transfer of land and buildings
  17. 17. Insurance Historic insurance for employer’s liabilities New insurances for the academy trust company from the point of conversion Must be set up before the point of conversion
  18. 18. What does not transfer Anything omitted from the commercial transfer agreement Liabilities (except historic employment liabilities) Deficit – but gets paid back indirectly
  19. 19. Faith schools Protecting the religious ethos of the school post conversion Registration Leadership and Governance Structure Recruitment of staff
  20. 20. Becoming an Academy Why and How• Conversion not Confusion• Overcoming any challenges September 2011
  21. 21. Strictly Education• Formed in 2002 – work exclusively in the Education  Sector• Support over 1000 schools in over 80 Local Authorities• Support Academies, Community & VA schools ‐ converting to Academy status and post conversion• Part of the Bond International Group, global provider of  HR Capital Management Software solutions and services  operating in 42 countries• Complete range of school support services
  22. 22. Strictly Education• Completed 70 Conversions up to Sept1st 2011• A further 40 schools at different points of the decision  making process• Work in partnership with Blake Lapthorn• Unique Academy PortalTM ..... Taking the Confusion out of Conversion
  23. 23. What Confusion?The issues fall into 4 key support areas:• Self determination versus employment risk• Financial benefit versus reporting and risk• Premises and Contracts control versus management responsibility• Legal Process versus independent Legal advice
  24. 24. HR & Employment Risk• Stakeholder Consultation• Measures• TUPE & Consultation• Due Diligence• Pensions Identifying Challenges and the Solutions
  25. 25. HR & Employment Risk• Audit of Policies• Working with Unions and recognition• Working with Staff• Staff Communication Identifying Challenges and the Solutions
  26. 26. Finance and Reporting• Process and Timeframe for reporting• Section 251 review (& LACSEG)• GAG Academy funding• Transfer of Assets and liabilities• Cash flow/Balance Sheet/Budget Setting Indentifying Challenges and Solutions
  27. 27. Finance, Accounting and Pension• VAT, registration, managing & reporting• Accounting arrangements & systems• Pensions (LGPS and TP) – Employee contributions (LGPS) – Employer pension contributions (LGPS) – Deficit & Liability (LGPS) Identifying Challenges and Solutions
  28. 28. Property Support & Asset Management• Gap Analysis & Condition Survey• Outstanding disputes, Land Share• New Builds and Children Centres• Risk Assessments• Remedial steps Identifying Challenges and the Solutions
  29. 29. Contract Leases & Insurances• Audit of SLAs/contracts (LA/Third Party)• Assessment of service quality• Evaluate options (TUPE/Measures?)• Audit of Insurances• Consideration /Evaluation of alternatives Indentifying Challenges and the Solutions
  30. 30. Evaluating the Options• Costs vs Benefits of Academy Status Autonomy - freedom to set remuneration and reward good performance Independence - increased funding directly to the Academy, you decide what to spend your money on Flexibility - set your own agenda and Curriculum Control - your premises and destiny• Importance of getting the governors and staff onboard (and unions)• Analysis before decision• Tried and tested solutions• Overall Project Management plan
  31. 31. www.strictlyeducation.co.uk/academyUnique Academy Work with high profile legalPortalTM information in partnersone place Seamless ongoing postExperience - extensive conversion supporttrack record Simple budgeting – fixedOne stop shop - all cost unlimited accessaspects 1 place Close working relationshipBespoke solutions - with the YPLA & DfEtailored to you .
  32. 32. www.strictlyeducation.co.uk/academy
  33. 33. Questions and Answers“I found Strictly Education’s Portal very useful and easy to use, it equipped me well and gave me the confidence, support and knowledge I needed to discuss further with my Governing Body” Graham Wright, Wardle High School Tel: 07976583959 nickolas.morrissey @strictlyeducation.co.uk
  34. 34. Academy DirectorsThe duties, responsibilities and liabilities of an Academy Director
  35. 35. Overview General background regarding the structure and management of an Academy Trust Company The duties of a director in the context of – company law – charity law
  36. 36. Overview (a few exclusions) Concentrating on duties of governance in the context of company and charity law Not specifically addressing other duties under: – Insolvency legislation – Other regulatory frameworks, e.g. Education Acts, Health & Safety legislation, etc.
  37. 37. Background Structure and management of an ATC – company limited by guarantee – exempt charity – regulation Single or Multi-Academy
  38. 38. The members of an ATC Initial members appointed by existing governors, then additional members by unanimous resolution Expected to be ‘few in number’ Stakeholders designed to provide a layer of accountability, can: – appoint and remove directors – approve changes to the constitution – require calling of general meetings and circulation of resolutions
  39. 39. The governing body (1) Broadly same as maintained schools but with more autonomy Ability to delegate Now governors are directors of the ATC for company law purposes and charity trustees for the purposes of charity law Responsible for day to day running
  40. 40. The governing body (2) Board of governors will – ensure the quality of education provision and delivery of charitable outcomes – challenge and monitor performance of the ATC – manage the ATC’s finances and property – employ staff – manage and comply with obligations of the funding agreement – comply with (and ensure that the ATC complies with) charity and company law
  41. 41. Model Articles: prescribed structure Prescribed governance structure: – up to ‘x’ governors (but not too many!) – optional staff governors (not more than 33%) – 1 LA governor (optional) – minimum 2 elected parent governors – the Principal – up to 3 co-opted governors PLUS – Sec of State right to appoint
  42. 42. Model Articles: term, resignation and removal 4 year term (other than for principal) Subject to re-election/re-appointment if still eligible Resignation by notice (as long as 3 remain) Removal by appointor Must be over 18 Cannot be a current pupil
  43. 43. Model Articles: Disqualification (1) Incapable of managing or administering own affairs Absent without permission from all meetings for six months Subject of bankruptcy or similar judgment Director’s disqualification order or undertaking Other Companies Act 2006 provisions S.72 Charities Act 1993 Removal from office of charity trustee by Charity Commission or High Court
  44. 44. Model Articles: Disqualification (2) If: – included on list kept by S of S under s.1 of the Protection of Children Act 1999 – disqualified from working with children under s.35 Criminal Justice and Court Services Act 2000 – barred from regulated activity relating to children (s.3(2) Safeguarding Vulnerable Groups Act 2006) – Subject of a direction, prohibition or restriction under s.142 Education Act 2002 – convicted of any criminal offence (exceptions)
  45. 45. Model Articles: Disqualification (3) After Academy has opened… if: – has not provided to the chairman of the governors a criminal records certificate at an enhanced disclosure level; or – if the certificate provided discloses any information which in the opinion of the Chairman or the Principal confirms that person is unsuitable to work with children (can be referred to the Secretary of State) N.b. All of the above apply to any member of any committee of the governors – even if not a governor
  46. 46. Company law: directors’ duties (1) Subjects of the general duties – Existing directors – Shadow directors – Former directors – in relation to conflicts/external benefits Administrative duties General duties Conflicts of interest
  47. 47. Company law: directors’ duties (2) Administrative duties – maintain statutory books – file accounts – maintain tax and national insurance records – keep minutes of meetings of directors and members (for 10 years) – ensure name is correctly displayed at registered office and on stationery – Companies House filings
  48. 48. Company law: directors’ duties (3) Seven general duties: – Act within powers – Promote the success of the company for the achievement of its stated purposes – Exercise independent judgment – Exercise reasonable care, skill and diligence – Avoid conflicts of interests – Not to accept benefits from third parties – Declare interest in proposed transaction or arrangement with the company
  49. 49. Company law: directors’ duties (4) Need to act Desire to maintain fairly between Likely long term reputation for high members consequencesstandards of business conduct To promote the success of the company for the achievement of its stated purposes Impact of operations on Need to foster business Interests of community & relationships with employees environment customers, suppliers and others
  50. 50. Company law: Promoting success? The meaning of “success” How is this to be determined? Judgment period – short, medium, long – over which success is to be judged If factors conflict, which prevails? Not enough to pay “lip service” to the factors Making and documenting decisions
  51. 51. Company law: some conclusions Good faith decisions will not be impugned Breach of duty is not established by the result but from the process and reasoning behind it Other listed factors must get a look in when considering the need to promote the success of the company for the achievement of its stated purposes Courts will be looking to support the sensible board and will not penalise risk-taking in the correct context
  52. 52. Company law: conflicts of interest Where are director has an actual or potential conflict of interest or loyalty Highly likely to arise, especially if the ATC has LA governors Conflict can be authorised by non-conflicted directors under an authority contained in company’s constitution – but note – no such authority in the model articles Therefore need special resolution of members to empower the non-conflicted directors to authorise the conflict Then a matter for non-conflicted directors to decide. Would not be appropriate for them to authorise a conflict if a conflicted director or a connected person could receive a benefit Recommend that the ATC adopts a suitable conflicts of interest policy and a procedure for the declaration of interests
  53. 53. Charity law: trustees’ responsibilities To carry out the objects of the company To protect and manage the property and assets To act in good faith, always in the best interests of the company To act prudently To hold and attend directors’ meetings To delegate appropriately To keep company’s books and records up to date, to keep accounts and to make all necessary filings with Companies House
  54. 54. Charity law: Finance Act 2010 Entitlement to various tax reliefs and exemptions New test to ensure not managed or controlled by individuals who ‘present a risk to the charity’s tax position’ Could result in loss of reliefs and exemptions ‘Fit and proper persons test’: – Give due consideration as to suitability of directors and senior personnel – Suggested procedure – guide and declaration (see HMRC web site)
  55. 55. Liability for failure and insurance Personal liability will not arise for governors carrying out their duties in good faith: – honestly – prudently – within powers – in accordance with normal standards expected of a person responsible for a business DfE’s view that insurance covering governors for personal liability is unlikely to represent good value for money (but model articles permit the taking out of such insurance)
  56. 56. Other requirements Need employer’s and public liability insurance (suggested minimum cover of £10m for each) Need for enhanced CRB checks for all personnel who could into contact with children, young people and vulnerable groups
  57. 57. Planning for Post Conversion:Regulation in its Various Forms Stephen Murfitt stephen.murfitt@bllaw.co.uk
  58. 58. Consultation, Regulations and DocumentingProcedures Consultation: Proposed Changes to Performance Management and Capability Arrangements for Teachers Consultation: 24 May – 16 August 2011 Department for Education has not yet responded to the consultation The current Education (School Teacher Performance Management) (England) Regulations 2006 will be replaced by the Education (School Teachers Appraisal) Regulations 2011 The new Regulations (as yet unpublished) are expected to come into force in 2012 These will not apply to academies. Para 15 of the consultation document: "The current regulations apply to teachers and head teachers employed either by a local authority or by the governing body of a school in England. No change is proposed to the scope of revised regulations. We know that many academies have put in place effective arrangements for managing the performance of their staff despite being outside the scope of the current regulations and we do not propose to change that". However, when published, academies may consider these as a benchmark against which to review their own arrangements
  59. 59. Consultation included draft Guidance and Model Policy for Appraising andManaging Teacher Performance. Para 19 of the consultation document:"To show how performance management and capability procedures fit together and toencourage schools to streamline their processes, we propose to replace the current non-statutory guidance and model policy for performance management and the current statutoryguidance and model capability procedures with a single non-statutory model policy thatcovers appraising and managing teacher performance – both performance managementand capability procedures.“The revised and streamlined model policy is optional for all schools and nolonger includes the informal capability stage.Publication of the final version of the model policy expected in Autumn 2011Again, academies may consider this as a benchmark against which to reviewtheir own policies
  60. 60. Flow Chart for Dismissing Teachers Using New Disciplinary / CapabilityProcedures
  61. 61. Full, detailed draft guidance and model policy – copy included in packs.The importance of properly documented and tailored procedures to deal withteachers misconduct or incompetence
  62. 62. The ‘Recycling IssuePara 23 of the consultation document:"We recognise that poor performance in one school may not mean that a teacher cannotperform effectively in another. That is one of the reasons we have not made provision in thelegislation currently before Parliament for employers to refer cases of professionalincompetence to a national regulator for barring them from the profession. We also believehead teachers, governing bodies and employers are better placed to tackle competence issuesthan a national regulator. This does mean it is important that all parties play fair with otherschools."Para 26 of the consultation document:"We propose that regulations should require employers (and former employers) to providecopies of a teacher’s previous appraisal statements to a potential employer when asked bythem to do so in support of an application for a teaching post. We believe this could helpfullysupplement the information provided by references and may also have the effect of limiting theextent to which compromise agreements between teachers and employers can subvert thereference process."Crown Copyright: Flow-chart and quotes from the consultation Proposed Changes to PerformanceManagement and Capability Arrangements for Teachers are Crown copyright-protected materialreproduced under the terms of the Open Government Licence from the Department for Educationswebsite. Corporate author: Department for Education.
  63. 63. The Investigation Process in Schools Transparency Fairness R (on the application of G) (FC) (Respondent) v. The Governors of X School (Appellant) [2011] UKSC 30 School disciplinary proceedings finding a teaching assistant had instigated an inappropriate relationship with a child, would not substantially influence the ISAs proceedings in relation to his entry on the Childrens Barred List. His Article 6 ECHR rights were not engaged at the disciplinary proceedings at which he was not entitled to legal representation.
  64. 64. The General Teaching Council for England The GTCE shall establish and maintain a register of teachers - section 3 Teaching and Higher Education Act 1988 All teachers with QTS that teach in a maintained school, non-maintained special school or pupil referral unit, must register with the GTCE Subject to the specific terms of an academys funding agreement, a teacher will need to register with either the GTCE or the IfL Education Bill introduced on 26 January 2011 - GTCE to be abolished 1 April 2012 The abolition does not affect the need to register for 2011-12
  65. 65. All registered teachers who are dismissed for either misconduct orincompetence are subject to referral to the GTCEAll registered teachers who resign during a process which could lead todismissal on the ground of misconduct or incompetence are equally subject toreferralIn a GTCE Professional Conduct or Competence Committee hearing, individualsfrom the school will often be called as witnesses to give evidence
  66. 66. The Teaching Agency 2012 Department for Education: “Teaching Agency to be up and running from April 2012” Date: 17 June 2011 The Teaching Agency is a new executive agency that will be responsible for ensuring the supply of high quality teachers and training, and for teacher regulation. It will open in April 2012 and take on some key functions currently carried out by the Training and Development Agency for Schools, General Teaching Council for England, Children’s Workforce Development Council and the Qualifications and Curriculum Development Agency subject to the necessary parliamentary approvals. The agency will support teachers, instructors, early years’ workers, classroom- based support staff, SENCOs, educational psychologists and examination officers. Subject to parliamentary approval of related legislation, the Teaching Agency will be responsible for three key areas of delivery supply and retention of the workforce the quality of the workforce regulation of teacher conduct”.
  67. 67. The Teaching Agency will be operational from April 2012It will take on some key functions currently carried out by the GTCE (amongothers)The agency will cover teachers and instructors, all early years workers,classroom-based school support staff, special educational needs co-ordinators(SENCOs), educational psychologists and examination officersThe TAs regulatory function will include teachers and instructors in academies.The agency will:(i) consider cases of serious professional teacher misconduct and where appropriate, bar teachers from teaching(ii) organise and conduct case hearings(iii) administer and manage the list of prohibited teachersThe TA regulatory function will not consider issues of lack of competence
  68. 68. The Education Bill and Current Consultation Education Bill – Proposed New Regulatory Arrangements Main features of the new regulatory system: Schools have discretion to decide which cases of serious misconduct to be referred to Secretary of State No referrals on ground of incompetence Referrals can be made by police, Independent Safeguarding Authority, other regulators and public The Secretary of States power to investigate and impose a prohibition (barring) order. The Secretary of State will hold a list of those subject to a prohibition order. The list will be publicly available No range of sanctions short of prohibition
  69. 69. Consultation: Proposed Changes to the Teacher Disciplinary and InductionRegulations following the Abolition of the General Teaching Council forEnglandConsultation: 20 July – 12 October 2011Proposed changes to disciplinary Regulations. New Regulations in force 1 April2012No requirement to register under the new systemThe new regulatory regime will apply by reference to "teaching work"Regulations will define "teaching work". Steer comes from the Specified Work andRegistration (England) (Amendment) Regulations 2003The investigation of misconduct casesTeachers standardsMembership of professional conduct panels – at least three people, one or more ofwhom is a serving teacher or those who have taught in past five years and one ormore people who have never been teachers.Procedure of professional conduct panelsProhibition Orders and Interim Prohibition OrdersReview of Prohibition Orders
  70. 70. Freedom of Information The Freedom of Information Act 2000 (FOIA) applies to academies as it does to maintained schools Presumption of openness underlies the FOIA The FOIA came into force immediately for those schools that converted to academies on or after 1 September 2010 From 1 January 2011, the FOIA has applied to existing academies, opened before 1 September 2010
  71. 71. Guidance and advice on all FOIA mattersAcademy trusts are responsible for ensuring an academy complies with theFOIASteps that the Academy Trust should takeEstablishing the FOIA publication scheme and access policy - staff familiarityFreedom of Information OfficersRecords management
  72. 72. Dealing with FOIA requestsTime limit – 20 working daysCosts limits (£450) and chargingExemptionsRefusing a request
  73. 73. Academy DirectorsThe duties, responsibilities and liabilities of an Academy Director
  74. 74. Overview General background regarding the structure and management of an Academy Trust Company The duties of a director in the context of – company law – charity law
  75. 75. Overview (a few exclusions) Concentrating on duties of governance in the context of company and charity law Not specifically addressing other duties under: – Insolvency legislation – Other regulatory frameworks, e.g. Education Acts, Health & Safety legislation, etc.
  76. 76. Background Structure and management of an ATC – company limited by guarantee – exempt charity – regulation Single or Multi-Academy
  77. 77. The members of an ATC Initial members appointed by existing governors, then additional members by unanimous resolution Expected to be ‘few in number’ Stakeholders designed to provide a layer of accountability, can: – appoint and remove directors – approve changes to the constitution – require calling of general meetings and circulation of resolutions
  78. 78. The governing body (1) Broadly same as maintained schools but with more autonomy Ability to delegate Now governors are directors of the ATC for company law purposes and charity trustees for the purposes of charity law Responsible for day to day running
  79. 79. The governing body (2) Board of governors will – ensure the quality of education provision and delivery of charitable outcomes – challenge and monitor performance of the ATC – manage the ATC’s finances and property – employ staff – manage and comply with obligations of the funding agreement – comply with (and ensure that the ATC complies with) charity and company law
  80. 80. Model Articles: prescribed structure Prescribed governance structure: – up to ‘x’ governors (but not too many!) – optional staff governors (not more than 33%) – 1 LA governor (optional) – minimum 2 elected parent governors – the Principal – up to 3 co-opted governors PLUS – Sec of State right to appoint
  81. 81. Model Articles: term, resignation and removal 4 year term (other than for principal) Subject to re-election/re-appointment if still eligible Resignation by notice (as long as 3 remain) Removal by appointor Must be over 18 Cannot be a current pupil
  82. 82. Model Articles: Disqualification (1) Incapable of managing or administering own affairs Absent without permission from all meetings for six months Subject of bankruptcy or similar judgment Director’s disqualification order or undertaking Other Companies Act 2006 provisions S.72 Charities Act 1993 Removal from office of charity trustee by Charity Commission or High Court
  83. 83. Model Articles: Disqualification (2) If: – included on list kept by S of S under s.1 of the Protection of Children Act 1999 – disqualified from working with children under s.35 Criminal Justice and Court Services Act 2000 – barred from regulated activity relating to children (s.3(2) Safeguarding Vulnerable Groups Act 2006) – Subject of a direction, prohibition or restriction under s.142 Education Act 2002 – convicted of any criminal offence (exceptions)
  84. 84. Model Articles: Disqualification (3) After Academy has opened… if: – has not provided to the chairman of the governors a criminal records certificate at an enhanced disclosure level; or – if the certificate provided discloses any information which in the opinion of the Chairman or the Principal confirms that person is unsuitable to work with children (can be referred to the Secretary of State) N.b. All of the above apply to any member of any committee of the governors – even if not a governor
  85. 85. Company law: directors’ duties (1) Subjects of the general duties – Existing directors – Shadow directors – Former directors – in relation to conflicts/external benefits Administrative duties General duties Conflicts of interest
  86. 86. Company law: directors’ duties (2) Administrative duties – maintain statutory books – file accounts – maintain tax and national insurance records – keep minutes of meetings of directors and members (for 10 years) – ensure name is correctly displayed at registered office and on stationery – Companies House filings
  87. 87. Company law: directors’ duties (3) Seven general duties: – Act within powers – Promote the success of the company for the achievement of its stated purposes – Exercise independent judgment – Exercise reasonable care, skill and diligence – Avoid conflicts of interests – Not to accept benefits from third parties – Declare interest in proposed transaction or arrangement with the company
  88. 88. Company law: directors’ duties (4) Need to act Desire to maintain fairly between Likely long term reputation for high members consequencesstandards of business conduct To promote the success of the company for the achievement of its stated purposes Impact of operations on Need to foster business Interests of community & relationships with employees environment customers, suppliers and others
  89. 89. Company law: Promoting success? The meaning of “success” How is this to be determined? Judgment period – short, medium, long – over which success is to be judged If factors conflict, which prevails? Not enough to pay “lip service” to the factors Making and documenting decisions
  90. 90. Company law: some conclusions Good faith decisions will not be impugned Breach of duty is not established by the result but from the process and reasoning behind it Other listed factors must get a look in when considering the need to promote the success of the company for the achievement of its stated purposes Courts will be looking to support the sensible board and will not penalise risk-taking in the correct context
  91. 91. Company law: conflicts of interest Where are director has an actual or potential conflict of interest or loyalty Highly likely to arise, especially if the ATC has LA governors Conflict can be authorised by non-conflicted directors under an authority contained in company’s constitution – but note – no such authority in the model articles Therefore need special resolution of members to empower the non-conflicted directors to authorise the conflict Then a matter for non-conflicted directors to decide. Would not be appropriate for them to authorise a conflict if a conflicted director or a connected person could receive a benefit Recommend that the ATC adopts a suitable conflicts of interest policy and a procedure for the declaration of interests
  92. 92. Charity law: trustees’ responsibilities To carry out the objects of the company To protect and manage the property and assets To act in good faith, always in the best interests of the company To act prudently To hold and attend directors’ meetings To delegate appropriately To keep company’s books and records up to date, to keep accounts and to make all necessary filings with Companies House
  93. 93. Charity law: Finance Act 2010 Entitlement to various tax reliefs and exemptions New test to ensure not managed or controlled by individuals who ‘present a risk to the charity’s tax position’ Could result in loss of reliefs and exemptions ‘Fit and proper persons test’: – Give due consideration as to suitability of directors and senior personnel – Suggested procedure – guide and declaration (see HMRC web site)
  94. 94. Liability for failure and insurance Personal liability will not arise for governors carrying out their duties in good faith: – honestly – prudently – within powers – in accordance with normal standards expected of a person responsible for a business DfE’s view that insurance covering governors for personal liability is unlikely to represent good value for money (but model articles permit the taking out of such insurance)
  95. 95. Other requirements Need employer’s and public liability insurance (suggested minimum cover of £10m for each) Need for enhanced CRB checks for all personnel who could into contact with children, young people and vulnerable groups
  96. 96. Academies SeminarPlanning for Post Conversion – Employment Debbie Sadler Senior solicitor debbie.sadler@bllaw.co.uk
  97. 97. Reorganisation of Employees Post Conversion Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) – Protections employees by: Transferring all rights and liabilities to Academy (not pensions) Making dismissals on account of the conversion or for a reason associated with the conversion automatically unfair* Prevents changes to terms and conditions where the reason for the change is the conversion or a reason associated with it* *UNLESS reason unconnected to conversion OR can show ETO reason
  98. 98. Reorganisation of Employees Post Conversion ETO (ie economic, technical or organisational) reason entailing changes in workforce – No statutory definition – Very limited scope – Query whether applies to changes in terms and conditions Includes, eg: – Reduction in number of teachers through introduction of video conferencing – Bringing together [X] schools into one academy Harmonisation of Terms and Conditions is not an ETO reason
  99. 99. Reorganisation of Employees Post Conversion Employees can agree to positive changes e.g introduction of bonuses, pay rises BUT, detrimental changes will be void e.g removal of contractual sick pay No limit in terms of time
  100. 100. Recruitment New recruits – Can be recruited on different terms and conditions UNLESS : discriminatory? collective agreement? - Need to carry out checks : CRB, right to work in UK etc - Consider recruitment process : interviews, pre medical healthcare questionnaires etc
  101. 101. Recognition – to recognise or not? Independent Trade Union recognition transfers:- – Where organised grouping of resources maintains distinct identity post transfer – Recognition transfers to ‘same extent’ – Voluntary/Statutory recognition
  102. 102. Recognition –v- Derecognition? Voluntary recognition :- – not legally binding – Subject to terms of agreement, can derecognise – No legal remedy Legally recognised – More difficult to derecognise (statutory procedure) – Legal remedies for failure to recognise
  103. 103. Questions?
  104. 104. Blake Lapthorn www.bllaw.co.ukContact: elizabeth.davis@bllaw.co.uk 023 8085 7011

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