MAT as an employer - HR and employment conference for school leaders 2016
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Our annual, one day conference for school leaders helps you to keep up with the pace of change and get the most out of your employees. At this year’s conference we heard from keynote speakers Nick MacKenzie and Heather Mitchell on the changing education landscape and how employment law changes affect schools and academies. Our education and HR experts also covered the post-election employment position, restructures, pay and reward, managing misconduct, strikes and work to rule, and leadership and management judgment in respect of HR. https://www.brownejacobson.com/education/services/employment-and-human-resources
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MAT as an employer - HR and employment conference for school leaders 2016
- 1. HR conference for school leaders MAT as an employer workshop
- 2. MAT as an employer Your people strategy including employment terms and harmonisation Emily Addai, Solicitor, Browne Jacobson LLP Eleanor Drabble, HR Consultant, Browne Jacobson LLP 11 October 2016
- 3. Agenda • Developing as “one employer” • Developing your people strategy • Decision making in a MAT • Legal issues – harmonising T&Cs – changing T&Cs – changing HR policies • New schools joining the MAT
- 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
- 6. The common journey to a MAT Lead school MAT New school joins New school joins How do you ensure “one employer” in this model? New school joins
- 7. Schools within the MAT Because different schools are likely to have different: • cultures • ways of working • policies, rules and practices • structures and levels of accountability Need to consider how to address these issues
- 8. Issues for the lead school There are also going to be issues for the lead school: • headteacher may become the CEO/Executive HT so may not be around all the time (impact on the lead school) • staff may move to support new schools (impact on lead school and the employees)
- 9. Your work programme 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 • create a set of MAT- wide HR policies/contracts
- 10. HR audit You may wish to carry out a personal file audit: Compliance and Consistency File Personal details Recruitment Payroll Contractual information and variations Absence Accidents Training Employment procedures Termination of employment RAG Rating 1 2
- 11. Single Central Record checklist Type of check What must be recorded on the SCR Tick to confirm Identity checks Name (forename and surname), Address, Date of birth, Date employment started, Position held, What evidence has been seen, by whom and the date DBS check with barred list check where a person will be engaging in regulated activity Evidenced By Date Check Completed (the date entered on the cleared DBS disclosure) DBS disclosure number (given on the cleared DBS disclosure). Checks to confirm the right to work in the UK The evidence seen to verify this right The date the evidence was seen and by whom. For those with limited leave to remain/work in the UK, the SCR must also record any relevant expiry dates and the most recent date the evidence was checked. Verify professional qualifications Whether or not a qualification is a legal requirement for the post If so, what the required qualification is The date which evidence was seen and by whom. If the post does not require a qualification enter’ N/A’. Additional checks where the appointee has lived or worked outside the UK in one location for 6 months or longer in the last 5 years Whether or not any additional check(s) was required If so, evidence of additional checks carried out The date the check(s) was undertaken Who carried out the check(s) Prohibition from teaching check Date Evidenced, Date Completed (the date the prohibition check was carried out and confirmed), Evidenced By’ (who carried out the check) Within the ‘Notes’ box either of the following: ‘No active sanction’ for those that have no sanctions and ‘Active sanction’ for those that have any further information. Barred List Checks Date Evidence Seen, Evidenced By, Date Check Completed If carried out as part of the DBS then these dates should reflect those recorded for the DBS Disclosure. Section 128 check (management positions only) – academies only Evidenced By Date Check Completed You will want to check each school’s SCR
- 12. Issues with “one employer” • TUPE obligations • Schools joining from different local authorities • Schools joining MATs at different times • Union issues
- 14. How will you manage your people? How do you get from A to B? A. What type of employer are you? B. What type of employer do you want to be as a MAT?
- 15. What is a people strategy? Allows you to: • address school/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 the goals (how well you are doing) Allows you to integrate schools in to the MAT
- 16. Your people strategy School strategy People strategy School vision School values School priorities and objectives School improvement plan People goals Action plan Results Ongoing Monitoring
- 17. Example people goals Business as usual Develop capability across the MAT to ensure excellent teaching and learning Effective structures and work force planning in place to deliver our priorities Development of MAT-wide policies and procedures
- 18. Your action plan - 1 Goal Objective Purpose , details and action Target dates Lead 1 . Develop capability across the MAT to ensure excellent/ effective teaching and learning Effective performance management in place Implement Trust- wide appraisal process for support staff Improve leadership capability across the organisation Concerns with performance are dealt with consistently and in a timely manner across the Trust. Support is put in place and action taken to deal with poor performance. Robust but fair and consistent process in place across all schools in the MAT that is supportive yet deals with issues in a timely manner. Identify areas of concern and put in place strategies to improve leadership including training, mentoring and dealing with poor leadership performance
- 19. Your action plan - 2 Goal Objective Purpose , details and action Target dates Lead 2. Effective structures and work force planning in place to deliver our priorities Review of organisational structures Workforce plan To ensure fit for purpose structure, that are able to deliver flexibility and opportunities for development. Carry out a review of [teaching, support, leadership] structures to identify efficiencies. Consider TUPE issues as part of consideration Develop a plan that sets out what roles are needed in the Trust, how many and what skills are required to ensure the best possible education for our students
- 20. Your action plan - 3 Goal Objective Purpose , details and action Target dates Lead 3. Development of MAT-wide policies and procedures HR policies – fit for purpose Improve communications between academies Consistent ways of working across the Trust (operating procedures) Policies are legally compliant and reflect what we want to achieve as an employer and help us achieve success. Revised policies are consulted on and implemented Develop effective ways to improve communications methods both within and across the schools to improve employee engagement in the organisation and better ways of working Audit decision making and procedures in the schools and set out a MAT-wide agreed approach to operating procedures to ensure consistency
- 21. Decision making in a MAT
- 22. Who makes decisions in the MAT? Hiring and firing • but there may be other discretionary powers that you may wish to make at a Trust-wide level for example extension of sick pay • need to determine the role of The Board v local governing bodies
- 23. Trustees Executive Principal LGB Principal HRANDOPERATIONS Appointing of cross-Trust Staff (in line with recruitment policy) Review of process Appoint and report to the Board Appointing Academy Staff Appoint (in consultation with the Principal) Recommend (or in some cases appoint) Establishing Trust wide HR Policies Determine the policies Review of policies and application Comply – will follow agreed policies Review of policies and application Comply – will follow agreed policies Dismissing all non-senior staff Review of process Report – to the Board Review of process (in consultation with the Executive Principal ) Comply – will follow agreed policies/procedures Report – to the Executive Principal Comply – will follow agreed policies/procedures Setting Terms and Conditions of Employment Determine – and consider any proposals by LGBs to make amendments Recommend Consult - report to Board on any suggested changes to the Academy’s terms and conditions Comply – will follow agreed policies/procedures Some examples
- 24. Legal issues
- 25. Harmonising terms and conditions • Impact of TUPE • Risks in not harmonising • Equal pay v TUPE
- 26. Question: join in with sli.do #BJHR16 If there is a TUPE transfer, when can you change terms and conditions? A. never B. when there is an ETO reason C. when the change is unconnected to the transfer D. after 2 years
- 27. Impact of TUPE Any changes to employees' terms will be void if the sole or principal reason for the change is the transfer itself. However, contractual variations will be permitted if: a) the sole or principal reason is an economic, technical or organisational reason entailing changes in the workforce (an ‘ETO reason’) and the employer and employee agree that variation; or b) the contract allows the employer to make that variation. May also be permitted where the changes are part of a wider reorganisation (which is nothing to do with the transfer). No fixed period of time beyond which harmonisation can take place without it being treated as resulting from the transfer.
- 28. Harmonisation and TUPE Putting all employees that transfer into the MAT on a MAT contract is what is known as ‘harmonisation’. • likely to be because of the transfer • unlikely to be ETO reason What if the changes are beneficial to the employees? • principles of TUPE still apply What if the employee agrees? • still likely to be because of the transfer (and therefore void) • the employee could challenge the change later and seek to rely on the old contract
- 29. Options for harmonisation Dismissal and reengagement • automatically unfair dismissal • settlement agreement? Seek agreement • how different are the Trust’s terms from the terms they have inherited? • unions?
- 30. Risks in not harmonising Workforce may be on different terms where they have transferred in from: • different Local Authorities; • another Academy Trust or Multi Academy Trust • a service provider e.g. catering or cleaning Good record keeping required
- 31. Equal pay v TUPE Potential risk BUT Possible defence • the employees are on different terms because the Trust has inherited those terms • the difference is not because of gender Consider whether there are areas of particular risk
- 32. Changing terms and conditions New staff (TUPE transfer) TUPE protection Existing T&Cs Existing staff TUPE protection Existing T&Cs New joiners No TUPE protection New standard T&Cs Existing staff (promotions) TUPE protection for existing terms only Offer new standard T&Cs
- 33. Changing terms and conditions • Changing standard T&Cs • Consider what terms you want to offer e.g. • redundancy payments • sick pay • maternity pay • Recruitment risks
- 34. Changing HR policies • TUPE will not apply if the policies are not contractual • How to check? • What can you do if they are? • How to change non-contractual HR policies – This would amount to normal “business change”
- 35. Consulting on new HR policies • Need to consult on introducing new policies • Consult with employees and recognised trade unions - in line with your recognition document (if you have one) • Depending on whether your MAT is based in one local authority area, then you will either consult with area or national trade union reps • Suggest 2-4 weeks for consultation on changing policies • Consider issues raised and respond before implementation
- 36. New schools joining the MAT
- 37. Setting out your intentions In the Section 13 “measures” letter – set out that new schools joining the MAT will with immediate effect be subject to MAT’s suite of HR policies: – “ No Ordinary Multi Academy Trust has developed, following consultation, a suite of HR policies that apply to all academies across the Trust. This ensures a fair and consistent approach to the management of people issues. These policies would apply to all schools joining the Trust from the date of their conversion”. What about ongoing issues?
- 38. Question: join in with sli.do #BJHR16 Does your MAT currently have a centralised function, such as admin team or finance team? • yes • no
- 39. Question: join in with sli.do #BJHR16 Is your MAT considering centralising any functions? • yes • no
- 40. Restructuring new schools joining the MAT Centralised teams? When should restructuring be carried out? TUPE Retaining on site resources? Redundancy pooling
- 41. Any questions?
- 43. Please note The information contained in these notes is based on the position at March 2016 . It does, of course, only represent a summary of the subject matter covered and is not intended to be a substitute for detailed advice. If you would like to discuss any of the matters covered in further detail, our team would be happy to do so. © Browne Jacobson LLP 2016. Browne Jacobson LLP is a limited liability partnership. Contact us Emily Addai 0115 976 6501 emily.addai@brownejacobson.com Eleanor Drabble 0161 300 8023 eleanor.drabble@brownejacobson.com
Editor's Notes
- Now you have to name a CEO
- The file may be ordered in the following way Personal details Paper information form (Updated annually) - SIMS DBS Barred list check Prohibition check (teaching posts only) Photo ID (also to show right to work in UK) Visa and immigration documentation (if applicable) Recruitment Application Form References x2 Proof of QTS Medical clearance Qualifications Interview notes Job description at time of appointment Letter of offer Payroll Bank details Pension Contractual Documents and Variations o Letters re: promotion o Letters of pay increments o All job descriptions including most up to date o All contracts including most up to date • Absence o Medical certificates and self certificates o Return to work meetings o Maternity / paternity o Compassionate leave • Accidents o Record of any accidents at work and confirmation of accident reporting • Training and Policies o Induction (signed) o Record of courses attended o ICT agreement (signed) o Safeguarding agreement (signed) • Employment Procedures o Appraisal documents o Records of action taken under the disciplinary, capability or sickness procedures o Relevant correspondence / notes • Termination of employment o Letter of resignation o Reply letter o Copies of references supplied o Termination interview record
- You may also include: Section 128 Direction Disqualification by association Medical clearance References
- Joining MATs at different times e.g. if policies have been reviewed across the MAT, the difference between existing MAT schools and new joiners may be more obvious Union issues – be mindful of consultation arrangements in place at your school
- Hiring and firing (this may move to the Board/governors when previously done by the headteacher)
- Consult: the individual/group that should be consulted as part of the process of completing a particular task. Deliver: the individual/group that has responsibility for undertaking the particular task delegated to them and reporting on its delivery at suitable intervals. In the case of the Executive Principal this will be at Trust level. In the case of the Principal this will be at Academy level. Determine: the individual/group that has primary responsibility for ensuring the particular task is completed and determining how the Trust and/or Academies (as appropriate) should undertake the task including determining appropriate milestones and targets to be reported against. Develop: the individual/group that has responsibility for developing proposals relating to a task for discussion and approval by the appropriate decision-making individual/group. Recommend: the individual/group that should make recommendations as to how a particular task should be completed. In the case of (i) the Executive Principal they will be making recommendations to the Board and/or LGB (as appropriate), (ii) the LGB they will be making recommendations in relation to their Academy to the Board, Executive Principal and/or Principal (as appropriate) and (iii) the Principal they will be making recommendations in relation to their Academy to the Executive Principal and/or LGB (as appropriate). Report: the individual/group that has responsibility for reporting on the delivery of tasks. In the case of (i) the Executive Principal they will be making reports to the Board and/or LGB (as appropriate, (ii) the LGB they will be making reports in relation to their Academy to the Board and/or Executive Principal (as appropriate) and (iii) the Principal they will be making reports in relation to their Academy to the Executive Principal and/or LGB (as appropriate). Review: the individual/group that has responsibility for reviewing whether a particular task is being carried out satisfactorily and where appropriate requiring action to be taken to ensure task is delivered appropriately. In the case of (i) the Board they will be reviewing the Executive Principal and/or LGB (as appropriate), (ii) the Executive Principal they will be reviewing the Principal and (iii) the LGB they will be reviewing the Principal and his leadership team. Comply: the individual/group will follow agreed policies and procedures.
- This is of limited benefit in practice but would, for example, include any variation arising from a change in location amounting to a redundancy (e.g. a variation to provide for the new place of work). In these circumstances, the contract could be varied by agreement to provide for the new location to be the new place of work. b) Even where a contract allows for changes to be made, you should look at exactly what changes are allowed to be made. For example: Is it subject to changes being reasonable? Are only certain parts of the contract able to be changed unilaterally? However, please be aware that even though these changes may not be void, it may still entitle the transferring employee to resign where it involves a substantial change in their terms and conditions to their material detriment. Equally, if changes are made beyond those permitted in the contract, not only could they be considered void, but there is a risk that the employee could say that the Trust is committing a breach of their contract of employment and resign and claim constructive dismissal. Causal link may be harder to establish the longer the period from the transfer, but in each case it will be a question of fact whether the causal link exists. Changes 2 years post transfer have been held to be in connection with the transfer and therefore void.
- The courts have confirmed that a variation in order to bring a transferring employees’ terms in line with terms of a transferee’s existing employees (i.e. harmonisation) is by reason of the transfer and therefore void. ETO reason – Economic, technical or organisational reason entailing changes to the workforce – workforce will usually remain largely if not entirely the same. In these circumstances, an employee may for instance continue working under the old terms or may resign and treat themselves as being constructively dismissed. Any such dismissal would be automatically unfair. Changes that are entirely more beneficial to the employee than their previous terms are still void under TUPE, but less likely to be challenged. Changes that are, overall more beneficial (i.e. as part of a package of changes, some of which are more beneficial and some of which would make the employee worse off) - they may be able to choose whichever pre-transfer or post-transfer terms are more beneficial to them. Where an employee agrees to the new terms they could later seek to rely on the old contract – as already mentioned they may be able to cherry pick the most beneficial terms for them.
- Dismissal and reengagement Risky where employees have more than 2 years’ service, as the dismissal would be automatically unfair Could seek to enter into a settlement agreement, but where employees have more than 2 years’ service, they may want substantial compensation in exchange for this Agreement Differences between the terms are likely to make a difference as to whether staff will agree to them or not. The fact that an employee agrees with these changes in principal reduces the risk of them seeking to challenge the terms of their employment in a Tribunal, particularly where changes are more beneficial to the employee. It also makes it less likely that they will want to resign to claim constructive dismissal. Unions may seek to challenge any changes to existing terms and conditions for their members. This may affect whether or not employees are likely to agree to the new terms.
- Could even be a combination of these i.e. there may have been 2 or 3 TUPE transfers in the past Although this could create a two (or more) tier workforce, this in itself may not be a problem. The Trust should ensure they keep good records so that they know which staff are on which terms.
- Areas of risk - are there members of staff who are performing like work or work of equal value who are paid more than others?
- Harmonisation Bear in mind that, where new schools are transferred into the MAT, the members of staff will have TUPE protection and the points raised regarding harmonisation will apply if the changes are to put the members of staff on Trust T&Cs. Changes to existing T&Cs after the transfer Where there are changes at some point after conversion/transfer which are still because of the transfer, then those changes would still be void. However, it is still possible to change T&Cs for staff who have TUPE protections where the changes are unconnected to the transfer. Also remember that this only applies to those employees who transferred – for new joiners to the Trust, the TUPE protection would not apply. It may be worth considering whether the Local Authority has also carried out the same changes e.g. paying TAs for weeks they work rather than all year round – still a risk of challenge under TUPE, but possible arguments that it is not connected to the transfer. Difficult for me to say what is/is not in connection with the transfer. Fact dependent – would have full discussion with you if you called us up for advice. Aside from TUPE, usual principles apply – often easiest to seek agreement to changes to existing T&Cs. The timing of these changes to existing terms and conditions may well be important. For example, if there is a change that is beneficial to staff, consider including it in a package with a term that is less beneficial. That way, employees are more likely to agree to both. If you put them forward separately, the employees may agree to the beneficial terms, but not the less beneficial ones. Changes to standard T&Cs MATs can make changes to their standard T&Cs for new staff joining the MAT (as TUPE would not apply to them) or where individuals are being promoted to new posts or have otherwise chosen to take on a new role. May want to get legal advice to ensure that any such changes are not because of the transfer. This can be the most simple way of putting all employees on the same terms and conditions. However, this will depend on staff turnover.
- New joiners and promotions/those who choose to take a new job. Risks – may have more difficulty recruiting if the terms they are offering are significantly worse than others in the local area.
- Check recognition agreement and/or school’s arrangements with unions which deal with what employment issues you are required to consult on and the extent of the consultation required
- Both the transferor and transferee must inform and (if it is proposed to take any "measures" in relation to employees) consult representatives of their own affected employees in relation to the transfer. If they fail to do so, an employment tribunal can award up to 13 weeks' actual pay for each affected employee. The question of consultation depends on: Whether there are any measures; Who is taking those measures; and Who is affected by those measures The duty to consult applies where one of the employers envisages measures in relation to its own staff. However, there would still be a duty to inform of any measures. Therefore, if a new school is joining your MAT, you should inform the employer at the school (e.g. LA if it is a community school) of any measures you intend to implement in connection with the transfer. You may want to consider the differences between the MAT’s policies and those currently in place at the incoming school – this may help with any questions from unions or staff. Ongoing issues e.g. disciplinary investigations – would recommend that these continue to be carried out under the previous policy.
- Centralised teams MATs may decide that it does not need separate teams in each of its schools (e.g. admin teams, finance teams etc) and that it would prefer one centralised team TUPE Dismissals where the sole or principal reason is the transfer are automatically unfair. However, a dismissal is potentially fair if an employer can show that the reason for the dismissal was an ETO reason. You should still follow a fair procedure. If you are aware of any changes that you intend to make once the new school has joined the MAT, this should be included as a measure and may trigger the obligation to consult When Each time a school joins the MAT, you will need to consider the implications of redundancy pooling and TUPE. As a result, you may prefer to wait to look at centralising support teams until you have a fairly stable base i.e. not many (if any) new schools looking to join. The benefit of this is that you can consider what structure suits your MAT the best on the basis of it’s current size. There may also be good members of staff in incoming schools that you would wish to retain. Once you have a central team in place, it would be sensible to work with any new schools before they join. For example, if there will need to be redundancies as a result of a school joining, you may be able to work with the current employer with a view to them entering into a settlement agreement with that employee. However, there are risks involved in this so suggest you get advice if looking to do this. Retaining resources You should consider whether there are any tasks that require someone physically on site. If so, ensure that there is a resource in the school to cover these issues. These tend to be points that would not be the central team but there is no-one else the in school to carry them out. Redundancy pooling Where a MAT has a central team and a new school joins, there are likely to be redundancies if the MAT has not already worked with the school in reaching settlements. The pool for a redundancy in these circumstances is unlikely to be limited to the employee(s) in the new school. Where the MAT has current staff carrying out the same or similar roles, it is arguable that these should be included in the pool too. However, if you have a number of new schools joining over a period of time, could create uncertainty for current staff and therefore affect employee relations.