blake lapthorn academies conference - september 2011
DESCRIPTION
Blake Lapthorn held two half day Acadmies conferences jointly with Strictly Education on Tuesday 13 and Friday 16 September 2011.TRANSCRIPT
Blake Lapthorn Academies seminar
Tuesday 13 September and Friday 16 September 2011
Welcome
Elizabeth Davis, Partner
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
Academy pros, cons and conversion process
Elizabeth DavisPartner
Track record
First conversion in HampshireAdvised on completed conversions for 15 schools7 local authority areasAct for 1 local authority on academy conversionsAdvise 3 large faith based organisationsAdvising 25 schools towards conversion
Academy pros, cons and conversion process
The legal backgroundPros and consUnderstanding the conversion process– Timetables and deadlines– Documentation– Common pitfalls
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 orSchool to provide for special educational needs
Pros
IndependenceAutonomyIncome generationGreater freedom – Staff– Curriculum– Organisation
MotivationalPolitical direction
Cons
Diminishing LA supportLoss of bulk purchasingNew responsibilities and duties– Obligations to S of S– Company and charity law
Questionable financial advantageBurden of conversion processBurden of autonomyOppositionCostFreedom of Information and public procurement obligations
Any others…?
The application process
Application for an OrderConsultation with foundation or trust (if applicable) before making applicationConsultation with community and local authorityApplication requires the consent of the trustees of the school and the persons by whom the governors are appointedSecretary of State indicates willingness to make orderDraft documents submitted and approved by the DFE according to strict timetableSecretary of State makes the Order
Documents submitted to DfE
Articles of association of Academy Trust CompanyFunding Agreements(s)Report on titleDraft lease and or Directions for transfer
Land issues
Identifying the land and locating the deedsInvestigating titleSite plan Lease /Directions for TransferReport on titleShared usePublicly funded land
Structure
Single or multi academy?Joining an existing academyConverging with an existing academy schoolIs there a special diocesan or other framework?
The process to completion
Academy Trust Company formedGovernors resolutionsSigning and submission of formal documentationCommercial transfer processRegistrations and other business to set up the new academyFunding agreement signedConversion on a specific dateTransfer of surplus
Understanding the conversion process
On conversion, current governing body is dissolvedCurrent school has to be transferred to a new Academy Trust CompanyAgreements must be made and signed up before conversion point
The commercial transfer
Legal assessmentEngagement with the local authorityEstablishing the new business frameworkCommercial transfer agreementTransfer of existing staff and operationsTransfer of land and buildings
Insurance
Historic insurance for employer’s liabilitiesNew insurances for the academy trust company from the point of conversionMust be set up before the point of conversion
What does not transfer
Anything omitted from the commercial transfer agreementLiabilities (except historic employment liabilities)Deficit – but gets paid back indirectly
Faith schools
Protecting the religious ethos of the school post conversionRegistrationLeadership and GovernanceStructureRecruitment of staff
Becoming an Academy Why and How
• Conversion not Confusion• Overcoming any challenges
September 2011
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
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
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
HR & Employment Risk
• Stakeholder Consultation• Measures• TUPE & Consultation• Due Diligence• Pensions
Identifying Challenges and the Solutions
HR & Employment Risk
• Audit of Policies• Working with Unions and recognition• Working with Staff• Staff Communication
Identifying Challenges and the Solutions
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
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
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
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
Evaluating the Options• Costs vs Benefits of Academy Status
Autonomy - freedom to set remuneration and reward good performanceIndependence - increased funding directly to the Academy, you decide what to spend your money onFlexibility - set your own agenda and CurriculumControl - 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
www.strictlyeducation.co.uk/academyUnique Academy PortalTM information in one placeExperience - extensive track recordOne stop shop - all aspects 1 placeBespoke solutions -tailored to you
Work with high profile legal partnersSeamless ongoing post conversion support Simple budgeting – fixed cost unlimited accessClose working relationship with the YPLA & DfE
.
www.strictlyeducation.co.uk/academy
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
Academy Directors
The duties, responsibilities and liabilities of an Academy Director
Overview
General background regarding the structure and management of an Academy Trust CompanyThe duties of a director in the context of– company law– charity law
Overview (a few exclusions)
Concentrating on duties of governance in the context of company and charity lawNot specifically addressing other duties under:– Insolvency legislation– Other regulatory frameworks, e.g. Education Acts,
Health & Safety legislation, etc.
Background
Structure and management of an ATC– company limited by guarantee– exempt charity– regulation
Single or Multi-Academy
The members of an ATC
Initial members appointed by existing governors, then additional members by unanimous resolutionExpected 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
The governing body (1)
Broadly same as maintained schools but with more autonomyAbility to delegateNow governors are directors of the ATC for company law purposes and charity trustees for the purposes of charity lawResponsible for day to day running
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
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
Model Articles: term, resignation and removal
4 year term (other than for principal)Subject to re-election/re-appointment if still eligibleResignation by notice (as long as 3 remain)Removal by appointorMust be over 18Cannot be a current pupil
Model Articles: Disqualification (1)
Incapable of managing or administering own affairsAbsent without permission from all meetings for six monthsSubject of bankruptcy or similar judgmentDirector’s disqualification order or undertakingOther Companies Act 2006 provisionsS.72 Charities Act 1993Removal from office of charity trustee by Charity Commission or High Court
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)
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
Company law: directors’ duties (1)
Subjects of the general duties– Existing directors– Shadow directors– Former directors – in relation to conflicts/external benefits
Administrative dutiesGeneral dutiesConflicts of interest
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
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
Company law: directors’ duties (4)
To promote the success of the company for the achievement
of its stated purposes
Need to foster business relationships with
customers, suppliers and others
Need to actfairly between
membersDesire to maintainreputation for high
standards of business conduct
Impact of operations oncommunity & environment
Likely long term consequences
Interests of employees
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 judgedIf factors conflict, which prevails?Not enough to pay “lip service” to the factorsMaking and documenting decisions
Company law: some conclusions
Good faith decisions will not be impugnedBreach of duty is not established by the result but from the process and reasoning behind itOther listed factors must get a look in when considering the need to promote the success of the company for the achievement of its stated purposesCourts will be looking to support the sensible board and will not penalise risk-taking in the correct context
Company law: conflicts of interest
Where are director has an actual or potential conflict of interest or loyaltyHighly likely to arise, especially if the ATC has LA governorsConflict can be authorised by non-conflicted directors under an authority contained in company’s constitution – but note – no such authority in the model articlesTherefore need special resolution of members to empower the non-conflicted directors to authorise the conflictThen 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 benefitRecommend that the ATC adopts a suitable conflicts of interest policy and a procedure for the declaration of interests
Charity law: trustees’ responsibilities
To carry out the objects of the companyTo protect and manage the property and assetsTo act in good faith, always in the best interests of the companyTo act prudentlyTo hold and attend directors’ meetingsTo delegate appropriatelyTo keep company’s books and records up to date, to keep accounts and to make all necessary filings with Companies House
Charity law: Finance Act 2010
Entitlement to various tax reliefs and exemptionsNew 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)
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 businessDfE’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)
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
Planning for Post Conversion: Regulation in its Various Forms
Stephen [email protected]
Consultation, Regulations and Documenting Procedures
Consultation: Proposed Changes to Performance Management and Capability Arrangements for Teachers
Consultation: 24 May – 16 August 2011Department for Education has not yet responded to the consultationThe current Education (School Teacher Performance Management) (England) Regulations 2006 will be replaced by the Education (School Teachers' Appraisal) Regulations 2011The new Regulations (as yet unpublished) are expected to come into force in 2012These 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
Consultation included draft 'Guidance and Model Policy for Appraising and Managing Teacher Performance'. Para 19 of the consultation document:
"To show how performance management and capability procedures fit together and to encourage schools to streamline their processes, we propose to replace the current non- statutory guidance and model policy for performance management and the current statutory guidance and model capability procedures with a single non-statutory model policy that covers appraising and managing teacher performance – both performance management and capability procedures.“
The revised and streamlined model policy is optional for all schools and no longer 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 review their own policies
Flow Chart for Dismissing Teachers Using New Disciplinary / Capability Procedures
Full, detailed draft guidance and model policy – copy included in packs.
The importance of properly documented and tailored procedures to deal with teachers' misconduct or incompetence
The ‘Recycling' Issue
Para 23 of the consultation document:
"We recognise that poor performance in one school may not mean that a teacher cannot perform effectively in another. That is one of the reasons we have not made provision in the legislation currently before Parliament for employers to refer cases of professional incompetence to a national regulator for barring them from the profession. We also believe head teachers, governing bodies and employers are better placed to tackle competence issues than a national regulator. This does mean it is important that all parties play fair with other schools."
Para 26 of the consultation document:
"We propose that regulations should require employers (and former employers) to provide copies of a teacher’s previous appraisal statements to a potential employer when asked by them to do so in support of an application for a teaching post. We believe this could helpfully supplement the information provided by references and may also have the effect of limiting the extent to which compromise agreements between teachers and employers can subvert the reference process."
Crown Copyright: Flow-chart and quotes from the consultation 'Proposed Changes to Performance Management and Capability Arrangements for Teachers' are Crown copyright-protected material reproduced under the terms of the Open Government Licence from the Department for Education's website. Corporate author: Department for Education.
The Investigation Process in Schools
TransparencyFairness
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 ISA's proceedings in relation to his entry on the Children's Barred List. His Article 6 ECHR rights were not engaged at the disciplinary proceedings at which he was not entitled to legal representation.
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 GTCESubject to the specific terms of an academy's funding agreement, a teacher will need to register with either the GTCE or the IfLEducation Bill introduced on 26 January 2011 - GTCE to be abolished 1 April 2012The abolition does not affect the need to register for 2011-12
All registered teachers who are dismissed for either misconduct or incompetence are subject to referral to the GTCEAll registered teachers who resign during a process which could lead to dismissal on the ground of misconduct or incompetence are equally subject to referralIn a GTCE Professional Conduct or Competence Committee hearing, individuals from the school will often be called as witnesses to give evidence
The Teaching Agency 2012Department 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 workforcethe quality of the workforceregulation of teacher conduct”.
The Teaching Agency will be operational from April 2012It will take on some key functions currently carried out by the GTCE (among others)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 TA's 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 teachers The TA regulatory function will not consider issues of lack of competence
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 StateNo referrals on ground of incompetenceReferrals can be made by police, Independent Safeguarding Authority, other regulators and publicThe Secretary of State's 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 availableNo range of sanctions short of prohibition
Consultation: Proposed Changes to the Teacher Disciplinary and Induction Regulations following the Abolition of the General Teaching Council for England
Consultation: 20 July – 12 October 2011Proposed changes to disciplinary Regulations. New Regulations in force 1 April 2012No 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 and Registration (England) (Amendment) Regulations 2003The investigation of misconduct casesTeachers' standardsMembership of professional conduct panels – at least three people, one or more of whom is a serving teacher or those who have taught in past five years and one or more people who have never been teachers.Procedure of professional conduct panelsProhibition Orders and Interim Prohibition OrdersReview of Prohibition Orders
Freedom of Information
The Freedom of Information Act 2000 (FOIA) applies to academies as it does to maintained schoolsPresumption of openness underlies the FOIAThe FOIA came into force immediately for those schools that converted to academies on or after 1 September 2010From 1 January 2011, the FOIA has applied to existing academies, opened before 1 September 2010
Guidance and advice on all FOIA mattersAcademy trusts are responsible for ensuring an academy complies with the FOIASteps that the Academy Trust should take Establishing the FOIA publication scheme and access policy - staff familiarityFreedom of Information OfficersRecords management
Dealing with FOIA requestsTime limit – 20 working daysCosts limits (£450) and chargingExemptionsRefusing a request
Academy Directors
The duties, responsibilities and liabilities of an Academy Director
Overview
General background regarding the structure and management of an Academy Trust CompanyThe duties of a director in the context of– company law– charity law
Overview (a few exclusions)
Concentrating on duties of governance in the context of company and charity lawNot specifically addressing other duties under:– Insolvency legislation– Other regulatory frameworks, e.g. Education Acts,
Health & Safety legislation, etc.
Background
Structure and management of an ATC– company limited by guarantee– exempt charity– regulation
Single or Multi-Academy
The members of an ATC
Initial members appointed by existing governors, then additional members by unanimous resolutionExpected 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
The governing body (1)
Broadly same as maintained schools but with more autonomyAbility to delegateNow governors are directors of the ATC for company law purposes and charity trustees for the purposes of charity lawResponsible for day to day running
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
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
Model Articles: term, resignation and removal
4 year term (other than for principal)Subject to re-election/re-appointment if still eligibleResignation by notice (as long as 3 remain)Removal by appointorMust be over 18Cannot be a current pupil
Model Articles: Disqualification (1)
Incapable of managing or administering own affairsAbsent without permission from all meetings for six monthsSubject of bankruptcy or similar judgmentDirector’s disqualification order or undertakingOther Companies Act 2006 provisionsS.72 Charities Act 1993Removal from office of charity trustee by Charity Commission or High Court
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)
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
Company law: directors’ duties (1)
Subjects of the general duties– Existing directors– Shadow directors– Former directors – in relation to conflicts/external benefits
Administrative dutiesGeneral dutiesConflicts of interest
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
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
Company law: directors’ duties (4)
To promote the success of the company for the achievement
of its stated purposes
Need to foster business relationships with
customers, suppliers and others
Need to actfairly between
membersDesire to maintainreputation for high
standards of business conduct
Impact of operations oncommunity & environment
Likely long term consequences
Interests of employees
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 judgedIf factors conflict, which prevails?Not enough to pay “lip service” to the factorsMaking and documenting decisions
Company law: some conclusions
Good faith decisions will not be impugnedBreach of duty is not established by the result but from the process and reasoning behind itOther listed factors must get a look in when considering the need to promote the success of the company for the achievement of its stated purposesCourts will be looking to support the sensible board and will not penalise risk-taking in the correct context
Company law: conflicts of interest
Where are director has an actual or potential conflict of interest or loyaltyHighly likely to arise, especially if the ATC has LA governorsConflict can be authorised by non-conflicted directors under an authority contained in company’s constitution – but note – no such authority in the model articlesTherefore need special resolution of members to empower the non-conflicted directors to authorise the conflictThen 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 benefitRecommend that the ATC adopts a suitable conflicts of interest policy and a procedure for the declaration of interests
Charity law: trustees’ responsibilities
To carry out the objects of the companyTo protect and manage the property and assetsTo act in good faith, always in the best interests of the companyTo act prudentlyTo hold and attend directors’ meetingsTo delegate appropriatelyTo keep company’s books and records up to date, to keep accounts and to make all necessary filings with Companies House
Charity law: Finance Act 2010
Entitlement to various tax reliefs and exemptionsNew 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)
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 businessDfE’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)
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
Academies Seminar
Planning for Post Conversion – Employment
Debbie SadlerSenior solicitor
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
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
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
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
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
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
Questions?