ACADEMY TRANSFERS
GUIDANCE FOR SCHOOL
REPRESENTATIVES & ACTIVISTS
Page
INTRODUCTION
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Teachers’ terms of employment
SECTION 1 TUPE OVERVIEW
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20
Right to consultation
General principles
Procedures for matching staff
SECTION 5 TRADE UNION RECOGNITION
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19
What is a collective agreement?
How can I ensure that collective agreements are transferred?
SECTION 4 REORGANISATION
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10
Transfer of STPCD provisions
Transfer of Burgundy Book provisions
Transfer of contractual rights under local agreements
Pensions
Continuity of employment
Can the academy change any terms and conditions?
Can the academy dismiss teachers?
Which working arrangements do not qualify as contractual terms?
Taking steps to ensure the transfer of teachers’ contractual entitlements
Long term protection of terms and conditions
SECTION 3 TRANSFER OF COLLECTIVE AGREEMENTS
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4
Individual employee rights on transfer
Collective rights on transfer
Being informed and consulted
SECTION 2 TRANSFER OF CONTRACTS:
PROTECTING EXISTING TERMS & CONDITIONS
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Seeking adoption of new recognition agreement
Arrangements for trade union facilities
SUMMARY AND CHECKLIST OF ACTIONS
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USEFUL LINKS
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INTRODUCTION
This booklet has been produced to explain the legal provisions that can be used to
assist in protecting members’ rights when a school becomes an academy. It can also
assist where an established academy is taken over by an existing academy chain or
where a free school is established upon the merger, take-over and/or closure of existing
schools or services. It is intended to provide technical advice to supplement the
Academies Toolkit “Protecting members in Academies” which is aimed at school
representatives in those academies which are in the process of transferring to academy
status or have transferred already.
The relevant law is contained in the Transfer of Undertakings (Protection of
Employment) Regulations 2006, ‘the Regulations’, often described as ‘TUPE’.
The TUPE regulations were amended on 31 January 2014. Advice and guidance on the
new provisions appears in shaded boxes throughout this booklet.
The TUPE regulations add to the rights that the Union already has to receive information
from employers and to be consulted on matters affecting its members; these rights arise
from the NUT’s status as an independent trade union, recognised by employers in the
Education Sector.
The Regulations apply where employees are transferred from one employer to another,
because the work that they are doing is moved across. They apply where a commercial
business is taken over by another, where a service contract is outsourced, but also
where control of a school is being moved from one body to another, where that involves
a change of employer. The Regulations therefore apply where a maintained school
becomes an academy and where an established academy is transferred to an existing
academy chain. They also apply where free schools are established upon the merger,
take-over and/or closure of existing schools or services.
Under TUPE, employees’ contracts, collective agreements, trade union recognition and
facility arrangements must be transferred to the new employer. The Union must be given
information about the transfer process and must be consulted about any changes to
working practices or contracts.
These TUPE rights can be used as tools to encourage and support members’ union
activities. They can be used to demand staff and union involvement in the transfer
process, to allow the school group to engage in the transfer process, and they can be
used defensively to protect individual members’ rights. The NUT believes that legal
rights and protections can be used most effectively in a collective manner, to build the
Union group and develop participation in the group’s activities.
TEACHERS’ TERMS OF EMPLOYMENT
In order to understand how TUPE works, it is important to have an understanding about
the legal framework for teacher employment. The chart below sets out the main types of
schools and which body is the employer in those schools. As can be seen, although the
governing body makes decisions regarding appointments and dismissals in schools, the
local authority is the employer of teachers in community and voluntary controlled
schools.
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WHO IS THE EMPLOYER OF TEACHERS?
SCHOOL / COLLEGE
EMPLOYER
Community
Local Authority
Voluntary Controlled
Local Authority
Maintained Nursery
Local Authority
Community Special
Local Authority
PRU
Local Authority
Foundation
Governing Body
Voluntary Aided (inc. nursery)
Governing Body
Trust School
Governing Body
Academy/Free school
Academy Trust
Alternative Provision Academy/
Free School
Academy Trust
Independent
Proprietor/Board
N.B.
This table applies to full time and part time teachers on permanent or fixed term
contracts. The position of agency and 'self-employed' teachers is more
complicated.
It is also important to understand the sources of the terms of most teachers’ employment
contracts. There are a number of sources, and the way that TUPE applies to them
differs.

The first element is the School Teachers’ Pay and Conditions Document
(STPCD, sometimes referred to as the Blue Book). This sets pay rates and
working time provisions. The Document is published annually by the Secretary of
State for Education, and applies by law to all teachers in the maintained sector.
Because the STPCD applies automatically only in the maintained sector, it will
only apply to teachers in academies if there is specific agreement, or if a teacher
was employed in the school before it became an academy. This is explained
further below.

The second source of terms in a teacher’s employment contract arises from the
Burgundy Book. This is the name given to the national collective terms and
conditions, agreed between the local government employers’ umbrella body and
the education sector unions. It provides in particular for sick leave and pay and
maternity leave and pay. The Burgundy Book is incorporated into the contracts of
all teachers who are employed in community and voluntary controlled schools. It
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is also incorporated by agreement into the contracts of all teachers employed in
voluntary aided schools and foundation schools.

The Burgundy Book also contains recommended arrangements regarding the
Unions' collective presence in schools. This includes provisions for consultation
and negotiation between employers and trade union representatives, and sets
out expectations on Union ‘facilities’. Union ‘facilities’ are the arrangements that
employers provide to enable the union to function, such as time off for officers
and representatives, consultation and negotiation arrangements and the use of
email or notice boards, meeting rooms etc.

There may also be local conditions of employment in policies and procedures
which have been agreed or fixed locally – usually at local authority level and
adopted by governing bodies or agreed at governing body level. These may add
to the Burgundy Book either by improving on its provisions, for example, by
offering more generous maternity leave arrangements, or by offering terms which
are not covered by the Burgundy Book, such as time off for religious observance.

Finally, individual teachers may have particular arrangements which form part of
their contract – such as job share or flexible working agreements.
It is vital that individual teachers have written evidence of their individual contractual
terms, and that the Union group has a list of all collectively agreed terms as early in the
transfer process as possible. You are encouraged to work closely with your members
and division to compile this information.
As will be seen, when a school becomes an academy, or where an established academy
transfers to an existing academy chain, the employees in the school transfer across to
the new employer – the Academy Trust.
In some cases, the new employer may consider making changes to employee contracts
and working arrangements in order to move away from the national provisions. The
Union is very concerned to maintain as far as possible a national framework for teacher
contracts, with national pay scales and national provisions on matters such as sickness
and maternity benefits. We can use TUPE as a tool, in addition to our negotiating and
bargaining arrangements, to try to defend those national provisions.
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SECTION 1: TUPE OVERVIEW
INDIVIDUAL EMPLOYEE RIGHTS ON TRANSFER
The starting point of TUPE is that everyone who is employed immediately before the
change of employer transfers automatically to the new employer if they so wish. There is
no need for any employee to apply for their job within the academy or to apply to move
across: it happens by operation of the TUPE Regulations themselves. Therefore, where
a school becomes an academy or a single academy joins an academy chain, or a free
school is established upon the merger, take-over and/or closure of existing schools or
services, all transferring teachers and support staff who are employed immediately
before the transfer, will remain employed immediately after the transfer.
Any employee who does not wish to transfer to the new academy is free to resign, but
will not have any rights to unfair dismissal or redundancy under TUPE. Some local
authority employers may offer voluntary redundancy, severance or redeployment for
those teachers who do not wish to work for an academy, but as the number of
academies has increased, the opportunities for redeployment to a maintained school
have reduced significantly.
It is important to note that TUPE only protects rights that already exist. It will not prevent
an employer from deciding that a redundancy situation has arisen, or deciding to dismiss
for a reason other than the transfer (e.g. for conduct or capability issues).
TUPE also provides that the contracts transfer. In fact, the employees’ contracts of
employment are treated as if they had originally been made with the new employer.
There is no need for new contracts to be issued.
In this way, the teachers who transfer from a maintained school to an academy will
remain employed on the terms of the STPCD, the Burgundy Book and any other terms
which form part of their contracts (see ‘Teachers' Terms of Employment’ above).
TUPE also places limits on the power of the new employer to make changes to terms
and conditions. This is explained further below in Section 2 under ‘Can the academy
change any terms and conditions?’.
Changes can also be made to any non-contractual working conditions – please see
Section 2 ‘Which working arrangements do not qualify as contractual terms?’
COLLECTIVE RIGHTS ON TRANSFER
As well as providing for individual employees' contractual rights to transfer to the new
employer, TUPE requires the transfer of the Union’s collective rights to organise and
negotiate on behalf of its members. These collective rights arise from the Union being
recognised in relation to its members – i.e., it is entitled by law to rights to collective
bargaining.
TUPE provides that both union recognition itself and the agreements that have been
made between the union and the employer transfer. There will be ‘machinery’ by which
consultation and negotiation takes place in your local authority and that will transfer to
the new employer. Any other agreements that have been made, for example for time off
for union duties, will also transfer. Unlike the individual employee contractual terms,
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these agreements are not usually legally enforceable but any changes to collective
agreements, including facility time arrangements, must be the subject of negotiation
between the employer and the recognised trade unions.
Under TUPE, before the date of transfer, the unions have a right to be informed about
the transfer process itself, and to be consulted about any proposed changes to the
working conditions that are ‘envisaged’ by either the old or new employer.
The Regulations place various duties on employers regarding the information that must
be given and the way in which consultation must take place.
The two duties to inform and consult are separate and independent – even if no changes
are anticipated, the existing employer still has a duty to provide specific categories of
‘information’ to the unions. The Employment Tribunals have clearly ruled that this duty
does not depend on whether or not any changes are to be made.
More on ensuring information and consultation is set out below.
BEING INFORMED AND CONSULTED
The TUPE Regulations place duties on both the employer before a transfer to an
academy (the transferor) and on the employer after a transfer (the transferee). Where
duties have been breached, either or both transferor and transferee may be held to be
responsible.
Some school representatives will be able to become more involved in the information
and consultation process than others. It is important however for representatives to keep
in touch with their division secretaries so that the Union can be aware of the school's
plans and how these are progressed. In particular it is vital that school representatives
maintain communication with their division secretaries on any proposed changes to
working practices and terms and conditions of employment.
How much time should we have for the information and consultation process?
Regulation 13 states that information should be provided long enough before the
transfer to enable consultation to take place. That is the case even if no changes to
working conditions are envisaged as there must be sufficient time for the employer to
consult voluntarily. This is why a local authority or other transferor employer must
conduct consultation in good time before a transfer.
The NUT’s view is that, in order to allow meaningful consultation, employers should
supply the information at the earliest opportunity. This will at the latest be immediately
after the confirmation that the governing body intends to go ahead with the transfer –
such as when it passes a resolution in favour of pursuing academy status or transferring
to an academy chain (or in the case of a forced academy, once the academy order has
been made).
Who should be involved in the process?
Regulation 13 provides that the employer should inform and consult recognised union
representatives, by written notification to the Union’s head or ‘main’ office. The NUT has
taken the view that this should be the division office, and where appropriate, the
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Regional Office. This view was endorsed by the employment tribunal in March 2012
where it was held that it was not sufficient to provide the information orally and it was a
breach of the regulation to provide the information solely to the school representative,
particularly as the NUT Regional Secretary had requested that the information be
supplied to the division office and the regional office. In some cases it is the school
representative who is initially informed of a proposed transfer. It is very important that
school representatives contact their division as a matter of urgency when they receive
any indication that their school might become an academy or a free school or that a
transfer to an academy chain is being proposed.
Note that for TUPE transfers which take place on or after 31 July 2014, small employers
with 10 or fewer employees are not required under TUPE to inform and consult where
there is no trade union or employee representative. The employer must instead inform
and consult each individual employee directly.
We do not envisage this situation arising often as the NUT will have been recognised by
the former employer. However, it is important that the NUT maintains a presence in the
workplace after a transfer. In smaller schools it might be appropriate to form an NUT
school group consisting of all NUT members to ensure that members are not isolated
and to remind the employer of the NUT’s presence.
Regulation 13 also stipulates that the TUPE consultation process must be undertaken
with a view to seeking union agreement to the intended action or changes. In the course
of the consultation the employer must consider any representations made by the union
representatives, reply to those representations, and give reasons for any rejection of
those representations.
Local authorities have often been helpful in providing information and facilitating
consultation on proposed transfers. It is helpful if the consultation and provision of
information can take the form of meetings with all relevant union representatives, as well
as staff presentations. It is also helpful if both pre- and post- transfer employers can be
involved.
What information must be given?
Regulation 13(2) of TUPE states that the following ‘information’ should be provided.

The date or proposed date of transfer and the rationale behind it.

Any legal, economic and social implications of the transfer.

Any measures (i.e., changes in working practices) which are ‘envisaged’ either by
the employer pre-transfer, or the new academy employer post-transfer. If no
measures are envisaged, the Union should be expressly informed of that fact.
The information is usually provided in a letter which employers often refer to as
‘measures’ letters.
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What are ‘legal, economic and social implications’ of the transfer?
This covers the impact that the transfer will have on your future terms and conditions,
pay, career prospects, pension arrangements and so on. The examples below are
‘implications’ that were successfully argued by the NUT in an employment tribunal which
was endorsed by the Employment Appeal Tribunal in January 2013.

Teachers who are transferred to an academy and subsequently decide to return
to work in a maintained school in the same borough or county, will lose continuity
of service for the purpose of qualifying for certain statutory rights such as
protection from unfair dismissal. The change in employer upon the subsequent
move would break the teacher's continuous employment. He or she would have
to accrue two years’ service with the new employer to be able to claim ordinary
unfair dismissal. The statutory protection of continuous service for teachers who
move from the employment of a governing body of a school maintained by a local
authority to the employment of the same local authority or vice versa is lost upon
the transfer.

Terms and conditions under the STPCD will have contractual force after the
transfer but they will no longer be protected by statute. The legal implication is
the change in the legal consequences of a breach – what would have amounted
to a breach of statute before the transfer, amounts simply to a breach of contract
after the transfer. See Section 2 for guidance on the impact on transferred
teachers of future changes to the STPCD.

Once transferred to an academy, teachers’ terms and conditions and other noncontractual terms, would either no longer be, or only partly be, determined by
national and/or collective agreements. This is not to say that the new employer is
prevented in some way from bargaining on collective agreements post transfer.
The true legal implication is that terms and conditions and other non-contractual
terms post transfer will be subject to local bargaining rather than national
collective bargaining. So, after the transfer, the academy or academy chain must
negotiate with the recognised unions on teachers’ terms and conditions.

A further implication for teachers transferring to a new employer on or after 31
January 2014 is that the new employer may renegotiate terms and conditions
deriving from collective agreements one year after the TUPE transfer. The TUPE
transfer will have legal implications for terms and conditions deriving from the
Burgundy Book and those deriving from local agreements. This is explained in
more detail in Section 2.
Which ‘measures’ should the Union be consulted about?
A ‘measure’ is a very broad term which will apply to any deliberate change in working
conditions or practices. This would cover changes to both contractual and noncontractual terms and conditions.
The duty to consult will cover any changes that are envisaged by the new employer as
well as those made by the pre-transfer employer in preparation for transfer. This would
include for example any pre-transfer redundancy/redeployment exercise or even
administrative changes to payroll such as setting a new pay date.
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A common measure is a proposal to amend transferring policies and procedures to
remove references to the role of the former employer, for example the local authority,
and to replace these with the name of the new employer.
At all stages of the process, it is the employer of staff at the particular time, which must
consult on proposed changes. There is a danger here - it is most likely that any changes
will be proposed by the new employer after transfer. In order to fill this potential
loophole, the regulations provide that the new employer must inform the old employer of
their proposed changes, so that consultation can still take place between unions and
that employer, even before transfer.
As we have said, if no measures are envisaged, the Union should be informed expressly
of that fact. It is not sufficient, for example, for an employer to state that the new
employer is not proposing any measure in respect of “various current contractual policies
and procedures”. Instead, the Union should be provided with a comprehensive list of all
existing “contractual” and/or “agreed” policies and procedures together with confirmation
that the new employer does not propose any measure in respect of any of the listed
policies and procedures.
Pressing for full information for the Union will allow additional checks to be made before
the transfer.
It is important to note that TUPE places restrictions on the rights of employers to make
changes to contractual rights as a result of the transfer process. For more explanation of
this, see Section 2 ‘Transfer of Contracts – protecting terms and conditions’.
Just because an employer has consulted the unions on a change to teachers’
contractual rights does not mean that the employer can impose that change without
negotiating on it.
Does the Union have to rely on TUPE alone for rights to consultation?
The rights to information and consultation provided by TUPE are in addition to the usual
rights to information for the purposes of collective bargaining. This is an expected
corollary of the fact that the Union is recognised for these purposes.
However the TUPE rights are backed up by legal sanctions where they are not properly
implemented. If the Union is not given proper access to information and consultation, it
can take a legal action in the employment tribunal seeking an award of compensation for
members in the school.
In addition there are similar legal rights to consultation where a restructuring or
redundancy exercise is envisaged.
What is my role as school representative during the process?
As stated above, school representatives can be involved in this process to differing
extents depending on the circumstances. However all representatives can play a crucial
role in ensuring that the Union, through the division secretary, is aware of the process
and the challenges being faced by members in the school.
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Where school representatives are involved in attending consultation meetings and
making representations on behalf of members, it is vitally important to create
documentary evidence of what representations have been made during the consultation,
and what responses have been received.
As soon as you are aware that your school proposes to transfer to academy status or to
an academy chain, or where a free school is to be established upon the merger, takeover and/or closure of existing schools or services, or where a private school is
transferring to free school status, you should contact your division secretary. You should
work together to compile a list of all collective agreements in place, and the date that the
agreements were made. The list should be discussed with and agreed with the current
employer. It is not sufficient for the current employer simply to refer to ‘various
contractual policies and procedures’ without listing them and confirming whether any
measures are envisaged in respect of each of them.
As we have said, it is likely that the new employer may wish to review agreements,
policies and procedures after the transfer, in order to replace references to the old
employer, etc.
Further, transferee employers following TUPE transfers taking place on or after 31
January 2014 may attempt to renegotiate terms and conditions deriving from collective
agreements one year after the TUPE transfer.
Any review of collective agreements should be the subject of consultation and
negotiation with the Union. You should contact your division as soon as you are aware
that your new employer proposes to review any agreements. Getting involved in the
consultation and negotiation will give you and your colleagues an opportunity to get to
know your new employer and to get involved in the work of the Union.
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SECTION 2: TRANSFER OF CONTRACTS – PROTECTING EXISTING TERMS AND
CONDITIONS
Where a school becomes an academy, and where an existing academy is taken over by
an academy chain, the TUPE regulations apply to protect the terms and conditions of
staff who transfer to the new employer. They also apply where free schools are
established upon the merger, take-over and/or closure of existing schools or services.
Teachers transferring from maintained schools will keep the same contractual provisions
that they were employed under in the predecessor school, including:




School Teachers’ Pay and Conditions Document (STPCD) terms;
Burgundy Book conditions;
Provisions derived from agreements with the local authority or governing body, if
any; and
Individual terms within their contracts.
Until January 2014, it was clear that those transferred terms and conditions were
protected indefinitely. Employers were prohibited from using the transfer as an excuse
for changing terms and conditions. And where the changes were not solely or principally
because of the transfer, TUPE limited the circumstances in which changes could be
made.
For TUPE transfers taking place on or after 31 January 2014, employers have greater
scope for changing the terms and conditions of TUPE transferred staff. They may
attempt to renegotiate terms and conditions derived from collective agreements one year
after the transfer. This is explained in more detail below.
In addition to indefinite protection, it was also understood until recently that terms and
conditions derived from collective agreements were not ‘frozen’ at the point of transfer,
but that transferred teachers would continue to benefit from any up-rating in collective
agreements after the transfer. This is known as the “dynamic” approach to terms and
conditions.
For TUPE transfers taking place on or after 31 January 2014, employers are allowed to
take a “static” approach to terms and conditions derived from collective agreements.
This is the result of an amendment to the TUPE regulations following the decision of the
Court of Justice of the European Union (CJEU) in the Unison test case, Alemo-Herron v
Parkwood Leisure Ltd. Employers may choose not to apply post-transfer improvements
to collectively agreed terms and conditions where the new employer is not a party to the
bargaining arrangements. This is explained in more detail below.
Most teachers’ contracts contain a clause stating that the contractual terms and
conditions are those set out in the STPCD, the Burgundy Book and in any
supplementary collective agreements negotiated between the employer and the
recognised teachers’ organisations.
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The Union has prepared a model paragraph that you can ask to be inserted into staff
contracts before a transfer. There is also a paragraph that new employers can be urged
to confirm in writing after the transfer for transferred teachers and to include in academy
contracts of newly appointed teachers after transfer. These are attached in Appendix B
of the Academies Toolkit: Defending Members in Academies along with a standard letter
to send to the head teacher which asks the governing body to formally agree that all
staff will be employed on national terms and conditions. The relevant paragraphs should
be included in the teacher’s letter of appointment or, preferably, in the written contract of
employment.
Transfer of STPCD provisions
The STPCD is a statutory document which applies by law to all teachers in local
authority maintained schools. It contains various provisions on pay and working time for
all teachers, whether classroom teachers or members of the leadership team.
Teachers will have a term in their contract that they are employed on the relevant
provisions of the STPCD. This term will transfer to the employment with the academy
employer (albeit on a contractual rather than a statutory basis). Teachers may remain
employed on the terms of the STPCD whether they remain in the same posts that they
held before transfer, or are promoted or otherwise placed in a different post upon a
transfer (e.g. through a re-structuring upon transfer – please see Section 4 for more
information on this).
The specific working time provisions set out in the STPCD will transfer. They include the
following for all classroom teachers:





a limit of 195 working days per year, of which 5 days must be non-teaching days;
a limit of 1265 hours of directed time per year;
an entitlement to at least 10 per cent of time-tabled teaching time as PPA time;
an entitlement to only rarely cover for absent teachers; and
a break of reasonable length at lunchtime.
Leadership group members and ASTs are exempt from the initial two provisions above,
but have the right not to work at weekends and public holidays or to undertake midday
supervision. If they have a teaching commitment they are entitled to PPA on the same
basis as other teachers. They also have the right, so far as is reasonably practicable, to
have reasonable time allocated in their timetables for management responsibilities.
The individual pay entitlements set out in the STPCD that apply before the change of
employer will transfer with the teachers to the new employer. The entitlements include
the right to be paid in in accordance with the salary and allowances framework, the pay
scale and the rates applicable under the STPCD at the point of the transfer. The STPCD
pay framework, rates and scales applicable at the point of transfer will apply to
transferred teachers after the transfer.
The STPCD allows school governing bodies to exercise their discretion on a variety of
pay matters, for example on whether to award TLR payments. Upon transfer, the
discretionary powers will be exercised by the academy employer. The academy must
still exercise its discretion in accordance with the provisions of the STPCD but is not
obliged to make the same decisions that the former governing body would have made.
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In addition to the individual pay entitlements, the STPCD provides for some pay matters
to be determined in accordance with the school pay policy. Upon transfer, the pay policy
will transfer to the new employer. Any entitlements within the pay policy that have been
incorporated into individual teachers’ contracts will transfer with the teacher to the new
employer. Any other terms of the policy will transfer but will be subject to annual review
by the new academy employer in accordance with the pay policy review provisions of the
STPCD and guidance. It is unlikely that a provision in a school governing body pay
policy e.g. that the current pay policy will apply for a period of 3 years, will be
enforceable by individual teachers against the new academy employer.
Teachers’ terms and conditions under the STPCD are imposed by statute, rather than
agreed between employers and trade unions; the terms are not thus derived from a
collective agreement. Where TUPE transfers take place on or after 31 January 2014,
however, employers might attempt to vary individual entitlements derived from the
STPCD in the same way that collectively agreed terms may be varied (a year after the
transfer). The NUT’s view is that the new 2014 provision applies only to collective
agreements; that the STPCD is clearly not a collective agreement; and thus that the
ability of the employer to renegotiate terms one year after the transfer does not apply to
STPCD-derived terms and conditions.
Employers might also attempt to apply the “static” approach to STPCD-derived terms
and conditions where TUPE transfers have taken place on or after 31 January 2014.
The NUT’s view is that any post-transfer improvements to the STPCD framework, rates
and scales must be applied automatically to transferred teachers when the STPCD is
revised.
If an employer is proposing in a measures letter not to apply the annual uprating of pay
derived from the STPCD, you are advised to seek advice and support from your division
secretary. Your school group will need to consider what steps you would wish to take
collectively in order to press the employer to agree to annual uprating.
Transfer of Burgundy Book provisions
The Burgundy Book is a national collective agreement between the local authority
employers and the teacher unions. It applies automatically to teachers employed in
community schools, and will have been incorporated into individual teachers’ contracts
of employment.
Teachers' individual entitlements under the Burgundy Book include provisions on:



contractual sick leave and pay;
contractual (or "occupational") maternity leave and pay; and
contractual notice periods.
All these terms will transfer to the employment with the academy employer.
The terms of the Burgundy Book have not been revised nationally since 2000. In the
event that the local authority employers and the teacher unions do negotiate any
changes to the Burgundy Book, the NUT will continue to argue, in respect of TUPE
transfers before 31 January 2014, that any improvements must apply automatically to
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transferred teachers where the teachers’ contracts include the model clauses referred to
above. This is in line with the dynamic approach to contractual terms and conditions.
The more likely scenario is that new academy employers will attempt to renegotiate
terms derived from the Burgundy Book. Teachers who transfer to a new employer before
1 January 2014 are entitled to continue to benefit from those terms. Any attempt to
change the terms, for example to harmonise the terms and conditions of transferred and
newly appointed staff is likely to be void. This is explained in more detail below under the
heading- Can the academy change any terms and conditions?
Where TUPE transfers take place on or after 31 January 2014, new employers will not
be obliged to apply any subsequent improvements to the Burgundy Book unless the new
employer has confirmed in writing after the transfer that the model paragraph forms part
of the contract. Since the Burgundy Book has not been revised nationally for over 10
years, it is unlikely that any changes will be made in the near future.
If, which is more likely, the new employer seeks to renegotiate changes to terms and
conditions derived from the Burgundy Book, then in respect of TUPE transfers on or
after 31 January 2014, the employer is entitled to make changes, provided certain
conditions are satisfied. These are explained in detail below under the heading- Can the
academy change any terms and conditions?
Transfer of contractual rights under local agreements
Local collective agreements can confer benefits such as an entitlement to leave of
absence in certain circumstances or entitlements under grievance, disciplinary or
dismissal procedures, for example the right to have a written warning expunged after a
period of 6 months. Local agreements can also improve upon the terms of the Burgundy
Book for example by enhancing teachers' entitlement to sick leave and pay or to
maternity leave and pay or by formalising contractual entitlements to adoption leave and
pay.
The provisions of local collective agreements will in all cases transfer to the new
employer by virtue of Regulation 5 of the TUPE Regulations.
Individual contractual entitlements derived from collective agreements may be enforced
by individual teachers but collective agreements themselves can only usually be
enforced by negotiation or ultimately by collective action. For more guidance on
Collective Agreements, see Section 3.
In addition, where local agreements expressly incorporate benefits into employees’
contracts, it is important to ensure that those teachers’ contracts also refer expressly to
these benefits so that transferred employees may enforce these terms against the new
employer under Regulation 4.
TUPE protects transferred teachers’ pay and conditions derived from local collective
agreements to the same extent as it protects terms and conditions derived from the
Burgundy Book. The difference between the two types of terms is that terms derived
from local agreements are more likely to be reviewed and renegotiated. The advice on
Burgundy Book conditions applies to locally agreed collective terms and conditions.
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Where the former employer negotiates changes, the NUT will continue to argue, in
respect of TUPE transfers before 31 January 2014, that any improvements must apply
automatically to transferred teachers where the teachers’ contracts include the model
clauses referred to above. This is in line with the dynamic approach to contractual terms
and conditions. Further, any attempt to change the terms, for example to harmonise the
terms and conditions of transferred and newly appointed staff is likely to be void.
In respect of TUPE transfers that take place on or after 31 January 2014, the revised
TUPE regulations apply. Where the former employer negotiates improvements to a local
agreement, the new employer is not obliged to apply those improvements to transferred
staff unless they have confirmed in writing after the transfer that the model paragraph
forms part of the contract.
Academy Trusts may only seek to renegotiate changes to terms and conditions derived
from the transferring local agreements if certain conditions are satisfied. These are
explained in detail below under the heading- Can the academy change any terms and
conditions?
Pensions
A major failing of TUPE is that it does not fully protect pension provisions. The Transfer
of Employment (Pension Protection) Regulations 2005 (as amended) offer limited
protection to pension rights but do not require the new employer to match the pension
provision of the transferring employer. However, academies and free schools are
required under their funding agreements (and under the Teachers Pension Regulations)
to offer membership of the Teachers’ Pension Scheme, so that all teachers, whether
transferees or new to the school after transfer, will be able to join or continue in
membership of the scheme.
Continuity of employment
Where teachers qualify for statutory entitlements at the time of the transfer, such as the
right to claim unfair dismissal after employment of two years (or one year where the
period of continuous employment began before 6 April 2012) or the right to claim
statutory maternity pay, these entitlements will transfer with the teacher to the new
employer.
However, it is important to note that the same doesn’t apply if you later choose to leave
the school. In these circumstances you will be moving to a new employer and will have
to build up your period of service again for statutory employment rights. One exception
applies in the case of calculating redundancy payments; in this case all continuous
service in the education sector, including academy service, will count.
Some divisions have sought to negotiate agreements with transferring local authorities
that service in an academy counts for the purpose of a contractual benefit under the
Burgundy Book. Without such an agreement, teachers who choose to leave an academy
and return to the maintained sector will not be able to count their previous service for the
purposes of maternity leave and pay, or their previous service outside the maintained
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sector for the purposes of sick leave and pay. They may have to build up additional
service before they qualify for contractual entitlements.
For more detailed guidance on continuous service and academy transfers, see the NUT
guidance - Academies and Continuous Service.
Can the academy change any terms and conditions?
TUPE transfers before 31 January 2014
In respect of TUPE transfers that took place before 31 January 2014, the TUPE
Regulations significantly limit the new employer’s ability to vary the contractual terms
and conditions of transferred employees.
An employer may not change the contract of a transferred employee if the sole or
principal reason for the change is the transfer itself. Even if the employer and employee
agree to the change, it will be void and unenforceable if the transfer is the reason for the
change.
The new employer may only change the contract terms of those employees who
transfer, if they can show that their reason for the change is a reason unconnected with
the transfer, or is “an economic, technical or organisational reason entailing changes in
the workforce” (ETO) and the employees consent to the change.
Any economic, technical or organisational “ETO” reason must require a change in the
number of employees or their functions.
The new employer and transferred employees can agree contractual changes only
where there is an ETO reason entailing changes in the workforce in terms of numbers or
job functions or where the reason is unconnected with the transfer.
Any contractual changes are automatically treated as void unless they are by agreement
and for one of these legitimate reasons.
The Union believes that it will be extremely rare for a contractual change not to be
connected with the transfer. Such a change would have to be unforeseen, unexpected
and out of the control of the employer. It will also be rare for an ETO reason to apply.
Even in circumstances in which there might be such a reason, the change is unlikely to
entail changes in the number or functions of the employees. And, notwithstanding the
reason for the change, for it to be valid, a contract variation must be agreed by the
employee.
Any detrimental changes to transferred employee’s contracts would be void and
unenforceable unless agreed and for an ETO reason entailing changes in the workforce.
It is therefore crucial that you contact your division secretary if the governing body
suggest that they want to make any changes to contracts.
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TUPE transfers on or after 31 January 2014
For transfers taking place on or after 31 January 2014, TUPE offers more limited
protection to terms and conditions but it is still possible to take steps to restrict the
erosion of teachers’ employment rights.
If the sole or principal reason for the change is completely unrelated to the transfer, the
new employer may seek to negotiate changes to transferred teachers’ terms and
conditions. But the NUT believes that it would be extremely rare for a change not to be
related to the transfer. The academy employer should be pressed to give full reasons for
the proposed change in these circumstances and to provide evidence that the change
was likely to have been sought had the TUPE transfer not taken place. In any event, the
employer would still have to consult and negotiate on the proposed change.
If the sole or principal reason for the change is the transfer, the employer may seek to
change a teacher’s terms and conditions if the contract of employment permits the
employer to do so. It will be rare however for a teacher’s contract to include such an
express clause and any attempt to introduce such a clause by an academy employer
should be opposed vigorously.
If the sole or principal reason for the change is “an economic, technical or organisational
(ETO) reason, entailing changes in the workforce” the employer may seek to negotiate
changes to the terms and conditions of transferred staff. For TUPE transfers on or after
31 January 2014, the ETO must entail a change in the number, function or location of
the workforce. A change for an ETO reason will be valid only if the employer and
employees agree to the change.
Where contractual terms and conditions derive from a collective agreement, such as the
Burgundy Book or a local agreement, the new employer is entitled to seek to negotiate
changes to those terms and conditions one year after the transfer. Those changes will
be valid only if the affected employees have agreed to the changes, and their overall
terms and conditions are no less favourable after the variation than before the variation.
In practice, for any new terms to be deemed no less favourable, employers would have
to offer a very valuable package of terms and conditions in return for giving up, for
example, the Burgundy Book maternity or sick pay scheme.
Can the academy dismiss teachers?
The dismissal of a teacher who transferred to a new employer under TUPE before 31
January 2014 would have been automatically unfair if the sole or principal reason for the
dismissal was the transfer itself, or a reason connected with the transfer which was not
an ETO reason entailing changes in the workforce in terms of numbers or job functions.
This would include dismissals which have arisen due to reasonably foreseeable or
anticipated circumstances and which are in the control of the employer. A reorganisation
by an Academy Trust to duplicate the structure of other schools within a chain might fall
under this category.
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In relation to TUPE transfers taking place on or after 31 January 2014, a dismissal will
be automatically unfair if the sole or principal reason for the dismissal is the transfer.
A dismissal may be fair if the sole or principal reason for the dismissal is an ETO reason
entailing changes in the numbers, functions or location of the workforce and the
employer follows fair dismissal procedures. If the school role falls significantly resulting
in a need for fewer teachers, any consequential dismissals may be fair provided that
proper procedures are followed.
The TUPE regulations do not give protection against loss of employment in the event of
a redundancy situation at the point of transfer or after the Academy has been
established. Employees may still potentially lose their jobs through reorganisation.
(Please see Section 4 for more information)
If you are concerned that there may be an attempt to dismiss members from your
school, you should contact your division secretary immediately.
Which working arrangements do not qualify as contractual terms?
The TUPE regulations do not protect working conditions which are not contractual terms.
Given that academies are encouraged to adopt innovative approaches to management
and teaching and learning, it is likely that teachers will encounter proposals to make
changes to areas such as the school day and timetabling or to workplace arrangements
such as capability procedures.
However, there may be collective agreements in place which require consultation on any
changes to any workplace procedures, and NUT representatives are encouraged to
ensure that the academy employer is aware of such agreements and that full
consultation takes place before any changes are made. (See Section 3 ‘Transfer of
Collective Agreements)
Taking steps to ensure the transfer of teachers’ contractual entitlements
Any changes such as those above that the new governing body envisage before transfer
should have been the subject of information and consultation as set out in the part of the
guidance headed ‘being informed and consulted’ above.
There is another tool that you can use in seeking information. This is the “employee
liability information” (ELI) that the pre-transfer employer is required by TUPE to provide
to the new employer before the transfer. This includes information on the terms and
conditions of employment of every employee including individual contractual
entitlements set out in local collective agreements.
For TUPE transfers before 1 May 2014, the pre-transfer employer must have provided
the prospective new employer with the employee liability information at least 14 days
before the transfer.
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For TUPE transfers on or after 1 May 2014, the employee liability information must be
provided at least 28 days before the transfer.
School representatives can play a crucial role in seeking copies of this information for
the Union and checking that it is accurate. This will involve checking with your division
secretary what the relevant collective agreements are, as well as confirming any matters
applying to individuals with members in your school. Whilst there is no legal requirement
specifically to provide the ELI to the unions, the Union would argue that this information
should be disclosed as part of the general consultation process and that it should also
be confirmed with individual members of staff. In the event that an employer refused to
provide the information to the Union, individual teachers may insist that the information is
disclosed to them and they may then copy this to the Union.
Long term protection of terms and conditions
The degree of protection afforded to teachers’ terms and conditions upon a TUPE
transfer will depend on the source of those terms and conditions, the date of the
transfer, and the terms of the teacher’s contract.
NUT representatives and activists are encouraged to be particularly vigilant of attempts
by academy employers to harmonise the terms and conditions of transferred teachers
with those of newly appointed staff on academy contracts. This is more likely to occur
where further transfers take place, for example where an established academy is taken
over by an academy chain.
The NUT does not accept that taking up a different teaching role post-transfer will
require or permit any change in terms and conditions. TUPE protection applies where
any ‘new’ teaching post involves some continuous element of provision of education to
pupils, even if the precise duties of the post are different.
Employers might attempt to persuade individuals to agree to new terms and conditions
through private conversations or confidential letters to staff.
Members should be encouraged to report any attempts by employers to change terms
and conditions. They should be advised that they cannot be compelled to for example
sign new contracts. All members should be encouraged to act collectively in rejecting
any attempts to change terms and conditions for the worse.
As we have said, pre-transfer employers and new employers should be urged to adopt
the Union’s model paragraphs.
Further guidance on the effect of reorganisations on terms and conditions is considered
in the section 4 – reorganisation.
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SECTION 3: TRANSFER OF COLLECTIVE AGREEMENTS
What is a collective agreement?
Collective agreements are national or local agreements formally negotiated between
unions and employers as a result of collective bargaining in relation to terms and
conditions, physical working conditions, and policies or procedures for appointment,
suspension, discipline, dismissal, allocation of work and so on.
The Burgundy Book sick pay and maternity schemes are national collective agreements.
Often these will be supplemented by additional agreements such as adoption leave or
disability leave agreements.
As well as conferring rights for individuals, covered in the previous section, collective
agreements often contain provisions which regulate the way in which the workplace will
be organised. Examples of this are agreements about machinery for negotiation and
consultation with unions and individuals, redundancy and reorganisation policies (to the
extent that they do not confer individual rights) and trade union recognition.
For teachers, the recognition arrangements agreed under the Burgundy Book are an
example of such a collective agreement. This document contains recommendations
about collective matters such as union facilities arrangements. Other local collective
agreements will also exist. These will all transfer under TUPE, which provides that the
agreement itself will have effect after the transfer, as if made between the union(s) and
the new employer.
Collective agreements are not, however, legally enforceable between a union and the
employer, unless explicitly agreed, i.e., a term in the written agreement says that it is the
parties' intention that the agreement is enforceable in a court of law.
How can I ensure that all existing collective agreements are transferred?
As soon as you are informed that your school is going to become an academy, or that
your academy is to move to an academy chain you should ask your division secretary to
compile a list of all local collective agreements currently in place, including the date of
the agreements. The list of agreements should be discussed and agreed with your
employer. This will avoid disputes arising close to the transfer date and ensure that the
correct agreements are transferred to the new employer.
As we have advised in Section 1, at the ‘information’ stage of the TUPE transfer, the
Union should be provided with a comprehensive list of all existing “contractual” and/or
“agreed” policies and procedures together with confirmation that the new employer does
not propose any measure in respect of any of the listed policies and procedures.
It is perfectly possible, post-transfer, to use transferred collective procedures to
negotiate improvements to collective agreements. However, should an academy breach
the provisions of a collective agreement or attempt to repudiate the agreement, unions
are unable to pursue legal action but must pursue the matter through negotiation or
ultimately through industrial action.
If you are concerned that there may be an attempt to change collective agreements in
your school, you should contact your division secretary immediately.
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SECTION 4: REORGANISATION
In some cases new academy employers seek to implement staffing reorganisations
during or following the transfer to academy status. This may be on a limited basis to
respond to new circumstances in the school, or may be a more general reorganisation.
The move to a new staffing structure does not however necessitate any change in terms
and conditions. As set out earlier, the STPCD and Burgundy Book provisions are equally
capable of applying to all teachers, at whatever level of seniority. Because of TUPE
protections, the NUT believes that members’ contractual terms should continue, even if
the precise duties of the post are different.
Whether they are promoted, employed in a post on the same pay with the same status,
or redeployed to a lower status post with safeguarding, transferred teachers should
continue to be employed in accordance with the terms of the STPCD. Pay safeguarding
should apply for three years in accordance with the STPCD’s provisions which form part
of the transferred terms and conditions.
The NUT’s view is that where a teacher has transferred under TUPE, his or her
redeployment to a different post in the context of reorganisation does not permit an
academy to vary any terms and conditions that are not directly affected by the change in
the teacher’s role. A reorganisation may well necessitate a change in some of a
teacher’s functions but it would not on its own require changes in any other aspects of
the teacher’s terms and conditions.
An employer that exploits structural changes to redeploy teachers onto academy terms
and conditions will be in breach of TUPE. Representatives are urged to inform their
divisions if it appears that an academy is planning to use reorganisation and/or
redeployment as a means of introducing new contracts.
The Right to Consultation
The Union has rights to consultation under TUPE on any reorganisation which is related
to the transfer. These rights are additional to rights to consultation under usual collective
bargaining procedures. Where there is a redundancy situation the TUPE rights to
consultation are in addition to the statutory rights to consultation in relation to
redundancies.
As previously stated, that consultation should be ‘with a view to seeking agreement’ and
the Union should have the opportunity to consult with members and make
representations about the proposed structure. The employer must respond to
representations, giving reasons for any that are rejected.
Ensure that you keep your division secretary informed of any proposals to restructure,
whether or not these appear to involve any suggestion of changes to working practice.
For TUPE transfers which take place on or after 31 January 2014, statutory consultation
on redundancies which is started before a TUPE transfer is deemed to count towards
the obligation on the new employer to consult under Section 188 of TULR(C)A 1992.
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The proposed new employer must make a written request to the pre-transfer employer
that it wishes to undertake pre-transfer consultation. The consultation may go ahead
only once the pre-transfer employer has agreed to it. The Union must be informed if the
pre-transfer consultation is cancelled.
There is no requirement on the proposed new employer to seek the agreement of the
Union to the pre-transfer consultation but we would expect an existing employer to notify
union officials immediately upon notification that a prospective employer proposes to
make any staff redundant.
The pre-transfer employer is obliged to allow representatives to have access to the
affected transferring individuals and to make available appropriate accommodation and
other facilities.
General Principles
If a restructuring is proposed for reasons linked to a transfer, school representatives
should work with their division secretary to ensure that:

there is no change to terms and conditions of TUPE transferred employees;

the TUPE transfer of the pay safeguarding provisions of the STPCD are accepted
by the academy, to protect any employee whose post in the new structure does
not maintain the same salary level;

those employees who face a loss of pay or seniority will be offered the option of
voluntary severance and/or redeployment by the old or new employer;

the existing employer and academy sponsor will give full consideration to offering
such employees alternative posts which could be undertaken with appropriate
training.
School representatives can play a crucial role by assisting their division secretary by
collecting and passing on information, and organising members in the school.
If it has not been offered to you, seek details of the new staffing structure giving the total
number of posts, the organisational structure of posts and the responsibility and
payment level for each post. They should include job descriptions and person
specifications for all posts. The timetable for implementing the transfer should include
dates for completing each step of the process, i.e., dates for collective and individual
consultations with staff, submission of preferences, meetings, interviews if any, and
confirmation of posts. The timetable and related documents should be made available to
all teachers affected by the proposals.
Procedures for Matching Staff
The NUT expects that the procedures for matching staff to a new structure will involve
consultations with the Union to seek agreement on which posts if any are sufficiently
different to require consideration of how teachers will be matched to them.
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After collective consultation with the Union, there should be individual consultation with
staff to explore potential matches between their existing responsibilities and those in the
new structure. Teachers’ previous experience in other roles should be considered and
they should be invited at this stage to express a view as to which posts they believe they
could be matched to.
Finally, the matching process should be carried out as follows.

Where there is only one candidate for the post they should be ‘slotted in’ without
interview.

Where there are several potential candidates the post should be ‘ringfenced’ to
those teachers. The person with the closest match of skills and experience
should then be ‘matched’ into the post.

Unmatched staff should be given the opportunity to appeal.

Unmatched staff should be considered for any remaining vacancy that is on the
same pay and status as their old positions. Consideration should be given to
suitable training if necessary.

Opportunities for redeployment and voluntary severance should be provided for
all unmatched staff.

Only where there is a genuine vacancy that remains unfilled at the end of the
process should the academy consider advertising posts externally.
You should be vigilant for lapses from this process, and for any suggestion that there
might be dismissals for reasons of redundancy. Again, keep in touch with your division
secretary on these matters.
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SECTION 5: TRADE UNION RECOGNITION
Once recognised, a union has rights to collective bargaining with employers and its
members have rights to meet and to participate in union activities. The NUT is a
recognised union throughout the education sector in England and Wales.
The Burgundy Book provides the basis of the machinery by which the NUT and other
teacher unions bargain with employers. Some divisions will have established formal
written recognition agreements with local authorities and school governing bodies.
These may include facilities arrangements and other arrangements for consultation and
information. Others will have unwritten but well established negotiating and bargaining
arrangements, such as regular negotiating meetings or what are known as Joint
Negotiating Committees with other teacher organisations.
Union recognition and the machinery that allows that to be put into practice are
transferred to the new employer under regulations 5 and 6 of TUPE. These provide that,
where recognition arrangements existed between the Union and the previous employer,
they transfer to the new employer as if they had originally been made with them.
Where a school joins an academy chain, the new employer may propose revisions to the
recognition and bargaining arrangements. It is important that these arrangements are
discussed and settled as far as possible before transfer.
Some academies have attempted to argue that after the transfer, teachers’ terms and
conditions and other non-contractual terms would no longer be determined by collective
agreement. The new employer is not prevented from bargaining on collective
agreements post transfer. Terms and conditions and other non-contractual terms post
transfer will be subject to local bargaining rather than national collective bargaining. So,
after the transfer, the academy or academy chain must negotiate with the recognised
unions on teachers’ terms and conditions.
Seeking Adoption of a New Recognition Agreement
The NUT does not wish to rely only on legal rights for recognition to transfer. Agreed
arrangements and relationships are needed, and can be supported by a revised
recognition agreement which relates to all teaching staff, not just those who transferred.
This can also ensure that there are mechanisms put in place to ensure that NUT local
officers who are transferred to academy employment, can continue to fulfil their Union
duties, and that those who are not employed by any particular academy can continue to
represent members in that academy.
A TUC model agreement has been developed for this purpose. The model agreement
sets out provisions for machinery for negotiation and collective bargaining, in the form of
a joint negotiating and consultative committee.
The model provides for full recognition for those trade unions which have previous
recognition rights protected by TUPE. While the NAHT (at the time of writing) and ASCL
are not signatories to the model the NUT accepts that it is desirable for those
organisations to be recognised where they also have members in the academy who
would be covered by this machinery. The model also provides for time off with pay and
other facilities for union representatives and for the academy to participate in local
arrangements within the local authority relating to time off with pay for trade union local
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officers. The TUC model agreement also contains a provision under which the academy
sponsor agrees to “participate in arrangements within the local authority area with regard
to time off with pay for any employees who are local or national trade union officers”.
You should work with your division secretary to establish agreement to the new
structures set out in the TUC model. In some academies, it has been difficult to obtain
the agreement of employers that the full TUC model is adopted. In those circumstances
your division secretary will assist you in obtaining adoption of an agreement which
contains similar effective machinery for negotiation and consultation, and which relates
to all present and future teaching staff, not just those transferred from the previous
employer.
Arrangements for Trade Union Facilities
The recognition agreement should provide for appropriate facilities to be provided to
NUT academy representatives. The Burgundy Book framework agreement on trade
union facilities contains recommendations on appropriate facilities including provision of
notice boards, access to telephones etc and facilities should be in accordance with that
agreement (which are also included in the TUC model), and any new agreement should
reflect those provisions.
The agreement should also include provision for any local NUT officer employed at the
academy to continue to undertake their duties as local officer, and for agreement that
other local officers not employed at the academy are equally able to fully represent NUT
members employed in the academy.
There is no single method of accommodating these arrangements. Many academies
have opted to contribute to locally agreed facility time pools held by the local authority.
These pools cover the cost of facility time in all of the schools within the local authority
boundaries. Whatever arrangements operate locally, you will be able to play a critical
role in helping your division secretary to establish the appropriate provisions for your
school.
The point of transfer is an ideal time to urge academies to participate in local facility time
arrangements.
The Union has agreed with our sister unions – ATL, NAHT and NASUWT – a pack of
resources for use by local officers to use in the fight to protect facility time – “Dedelegation: A joint union toolkit for local/district union representatives”. Your local officers
will be able to use these guidance materials and letters to seek to persuade academy
employers to participate in local facility time arrangements. Some of the letters set out
the arguments for retaining central funding by the local authority for the costs of supply
cover relating to trade union facility time. These have been reproduced at Appendix E of
the Academies Toolkit - Protecting members in Academies.
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SUMMARY AND CHECKLISTS
RIGHTS TO INFORMATION AND CONSULTATION UNDER TUPE
Has the Division received the basic information required by TUPE Reg 13?
reasons for transfer, and the proposed date
the ‘legal, social and economic implications of the transfer’
whether any changes are envisaged, either pre or post transfer?
Is there a timetable of joint union consultation meetings, including representatives of
both the existing employer and the new academy employer?
Are there any planned changes to terms and conditions or working practices?
Are there any redundancies planned, or a staff restructuring? If so there is a right to be
consulted. Contact your division secretary. Also ask for:
your current school pay policy together with the annexed staffing structure and
confirmation as to whether the NUT agreed to the school pay policy
the proposed staffing structure and mechanism for transfer of staff
the current employer's position on voluntary severance for staff who do not wish
to transfer
Even if you are told that there are no proposed changes, seek:
a list of all local agreements and policies that will transfer
all individual terms and conditions that will transfer
what the terms and conditions will be for new employees of the academy
confirmation that there are no proposed alterations to non-contractual
conditions, e.g., length of working day, school terms, etc
Divisions and school representatives should compile a file of documentary evidence
during consultation, including:
minutes of meetings
any correspondence about the transfer
any correspondence to staff, or staff presentations
any requests for information made by the Union
any written representations made by the Union and the written responses
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NEW STAFFING STRUCTURES
Together with your division secretary you should:
point out that proposals for changes to the staffing structure will trigger the duty to
consult under TUPE
seek a copy of the proposed organisational structure showing the number of
posts with pay levels and responsibilities
confirm there are no proposals for adverse changes to terms and conditions in
the new structure, and that TUPE protection will apply
seek to ensure the process follows the general NUT principles
challenge any proposed redundancies, and ensure the local procedures are
used, including redeployment and voluntary severance
make sure that any representations are made in writing, and you have
documentary evidence of the responses
get a timetable with clear dates for each step of the process
seek to ensure no vacancies are externally advertised unless there is no
possibility of an existing teacher filling the role
TRADE UNION RECOGNITION
Together with your division secretary you should seek to ascertain the following.
Is there an existing recognition agreement in written form with the local authority?
Does that agreement cover all the main points in the TUC model?
Does the agreement have notice provisions for ‘de-recognition’?
Get the academy to confirm BEFORE transfer that trade union recognition will
transfer.
Work alongside the other trade unions in the school to use the TUC model
agreement to modify the existing agreement for the new academy conditions.
Make sure the agreement includes facilities for notice boards and communicating
with members by email/telephone, etc.
Make sure the agreement provides for paid time off for trade union duties.
Make sure the agreement provides for paid or unpaid time off for trade union
activity such as attending conference as a delegate.
Make sure the agreement provides for participation in local authority pooled
arrangements for funding of local NUT officers, and their right to negotiate and
represent members in the academy.
If the academy is refusing to recognise the Union get advice from the Regional
Office.
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USEFUL LINKS
Government guidance on the operation of the TUPE Regulations can be found at:
https://www.gov.uk/transfers-takeovers/overview
The TUPE Regs themselves are online at:
http://www.legislation.gov.uk/uksi/2006/246/contents/made
ACAS Code of Practice on Time Off for Trade Union Duties and Activities at:
http://www.acas.org.uk/CHttpHandler.ashx?id=274
The Burgundy Book and other general information on teaching issues:
http://www.teachers.org.uk/node/7984
The STPCD:
https://www.gov.uk/schools-colleges/careers-employment
Nov 2014
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