This document discusses managing growth and minimizing risks for a multi-academy trust (MAT). It addresses developing a people strategy across the MAT to ensure consistency, flexibility, and efficiencies. Legal risks around TUPE transfers and changing terms and conditions are also covered. The MAT aims to operate as a single employer but must address differing school cultures and policies. Options discussed to align terms include harmonizing conditions during transfers using TUPE consultation or accepting historical differences and setting consistent policies for new staff.

1. HR for Education 2018

2. Eleanor Drabble & Helen Badger
Browne Jacobson
How to manage MAT growth and
minimise risks

3. Focus of our session
One-employer approach:
— managing employee relations across the MAT
— developing a people strategy to drive and improve
performance, including delivering efficiencies across the MAT
Decision making and governance
Legal risks:
— impact of TUPE
— changing terms and conditions and harmonisation

4. One employer

5. MAT as One employer
— MAT is the employer not the individual schools
— Benefits of “one employer” approach
– ensures fairness and consistency
– reduces risks of tribunal claims and grievances
– creates a cohesive workforce
– creates a shared culture and vision
– flexibility to allocate resources
– delivering real efficiencies in service delivery

6. However issues may arise
Because different schools are likely to have different:
— cultures
— ways of working (duplication or inconsistencies)
— policies, rules and practices (from different LAs)
— structures and levels of accountability
Need to consider how to address these issues

7. Trade union facilities
The trade unions are keen to agree a Trust-wide recognition
agreement
— covers facilities and time off
— establishing a Joint Consultation and Negotiating Committee
— contributing to the LA facilities “pot”
What are your obligations?

8. Your HR/people strategy
— Allows you to:
– address trust/academy priorities through people-related
activities
– set people goals (what you want to achieve)
– develop an action plan of activities (what you will do to
achieve the goals)
– track progress on meeting your goals (how well you are
doing)
— Allows you to integrate schools in to the MAT,
— Allows you to centralise services to improve efficiencies

9. What do you need to do
Creating “one employer” does take time - decide your priorities:
— audit of current issues (what is going on?)
— deal with capability/legacy issues (legacy performance issues
may be key)
— check processes are robust across the MAT (to ensure
accountability and control))
— centralise services - facilities, HR, finance, marketing, IT
— create a set of MAT- wide HR policies/contracts (a measure
for future transfers)

10. Decision making and
governance

11. Who does what?
— scheme of delegation – provides clarity/thresholds of
delegation
E.g. who does the hiring and firing, setting pay, new posts
— discretionary powers at a Trust-wide level (for example
extension of sick pay) rather than local
— what can stay in school, what needs to be regionalised or
centralised?
— need to determine the roles of The Board v local governing
bodies

12. Need to get the delegation right
Main Board
Strategic oversight, setting
visions and policies for the
Trust, governance of the
Trust, contractual
relationships with third
parties
LGB
Day to day running of each
academy, implementing the
Trust’s vision, policies and
priorities, holding academy
leadership to account

13. An example

14. Legal risks

15. Employment risks
Single employer as a MAT
— inconsistency – no. 1 risk
— equal pay (including job evaluation)
— discrimination
— lack of clarity on delegation means confusion and either
indecision or bad decisions
— T&Cs – harmonise or not?

16. TUPE and harmonisation
— An employee’s terms and conditions of employment are protected
when an economic entity (e.g. a school) is transferred from one
employer to another
E.g. school joins an existing academy trust – the business is
transferred from the local authority or governing body of the school
to the academy trust
— The new academy trust may want to harmonise T&Cs, perhaps to
avoid bad feeling in the workforce or to make HR issues much easier
to deal with.

17. Can you change contracts under TUPE?
When is a change void?
— If the sole or principal reason for it is the transfer itself
— BEIS* Guidance
— Change because of the transfer and no extenuating circumstances
— Where the new employer wishes to harmonise – the transfer WILL be
the reason for the change
* Department for Business, Energy and Industrial Strategy

18. Can you change contracts under TUPE?
When is a change permitted?
— where changes not related to the transfer
— sole or principal reason is an ETO reason provided the employer and
employee agree
— terms of the employment contract permit the change
— terms that are incorporated from a collective agreement – provided
12 months after transfer and “when considered together” no less
favorable to employee
— beneficial changes

19. What is an ETO reason?
— Economic, technical or organisational reason, entailing
changes in the workforce
— the BEIS guidance from 2014 states (at page 23) that it is
likely to include:
a) A reason relating to profitability or market performance;
b) A reason relating to the nature of the equipment or
production processes which the transferee operates; or
c) A reason relating to the management or organisational
structure of the transferee’s business

20. What is an ETO reason?
— Where there is a change in the workforce, and this must involve a
change in the numbers, or possibly functions, of the employees
— Change of location would be covered
— It must be concerned with the day-to-day running of the business,
such as:
–Differences in the scope of operations
–Dismissals with a view to enabling the business to continue trading

21. Particular TUPE risks
— Harmonisation following transfer
• enhanced protection against unfair dismissal
• automatically unfair dismissal
• resignations leading to constructive dismissal claims
• claims for failure to inform and consult (up to 13 weeks
pay per employee)
• cherry picking of pre and post transfer T&Cs
— Harmonisation unrelated to transfer
• breach of contract
• unfair dismissal

22. Risks of not harmonising
— Workforce may be on different
terms (a two-tier workforce)
where they have transferred in
from:
– Different Local Authorities;
– Another Academy Trust or
Multi Academy Trust
– A service provider e.g.
catering or cleaning
— Need to make sure you keep
accurate records to show the
different T&Cs of the various
groups
— Equal pay:
– Potential risk but you may have
possible defence of:
– inherited those terms
– difference is not because of
gender
– Consider whether there are areas of
particular risk

23. Options to minimise
risks and maximise
MAT growth

24. Options
1. Align at transfer using “measures” in TUPE consultation – get
advice
2. Accept historical differences and set out a consistent
approach for all new staff including a suite of JD’s, Trust pay
structure, consistent policies and contract terms reflecting
the employer you want to be
3. Harmonise T&C’s and policies – must consider whether
contractual or not and therefore consultation or negotiation
and TUPE risks

25. Changing contracts
Existing staff
(TUPE transfer)
TUPE protection
Existing T&Cs (no
requirement to put
on new contracts)
New joiners
No TUPE
protection
New standard
T&Cs
Existing staff
(promotions)
TUPE protection
for existing terms
only
Offer new
standard T&Cs

26. Thank you
Helen Badger
Partner
t: 0121 237 4554
e:helen.badger@brownejacobson.com
Eleanor Drabble
HR consultant
t: 0330 045 2108
e: eleanor.drabble@brownejacobson.com