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Transferring Staff (TUPE)

When a school transfers from local authority to academy status, its staff will automatically transfer their terms and conditions to the academy under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). The Academy takes over responsibility for the staff and inherits any liability in relation to disciplinary and grievance action taken by the local authority. Transferring employees retain their continuity of service.

TUPE also applies when a service provision change takes place, for example when a school decides to terminate its contract with its cleaners/caterers, and award the contract to a different cleaning/catering company, or to bring it in house.

TUPE is a complicated piece of legislation and you may wish to seek legal advice to ensure that all of its requirements are met. The following advice is not exhaustive but is intended to give an idea of the issues that should be considered in relation to TUPE prior to seeking Academy status. TUPE tends not to apply to free schools which are starting from nothing, but may apply where an existing school was previously in place.

What is TUPE?

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE regulations) were designed to protect employees against unfair treatment as a result of a transfer of their employment.

Who transfers?

All staff who were employed by a local authority school immediately before the transfer to academy status will automatically transfer their terms of conditions to the academy under the TUPE regulations.

An employee can object to the transfer, but if they refuses to transfer this is deemed a resignation, and the employee will not be entitled to redundancy pay, nor will they be deemed to have been dismissed, so generally cannot claim unfair dismissal, although there may be some exceptions (see changes to terms and conditions below).

TUPE protection

TUPE protects transferring employees from unfair dismissal and from changes to their terms and conditions where the reason for the change is the TUPE transfer, unless it is with their agreement, or the academy feels certain that it can show an employment tribunal that it is for an economic, technical or organisational reason which entails changes in the workplace. However, because TUPE is a complicated piece of legislation, any organisation considering making a dismissal or making changes to terms and conditions following a TUPE transfer is advised to seek legal advice on its individual circumstances to ensure that all of its requirements are met.

There is no fixed timescale after which TUPE protection no longer applies, although it may be deemed to be no longer applicable by an employment tribunal on an individual case basis. Harmonisation of terms and conditions is not an acceptable reason for changing terms and conditions.

Inherited responsibilities

Under the TUPE regulations, an academy inherits liability in relation to disciplinary and grievance action taken by the old employer (in this case the Local Authority). The Academy does not inherit criminal liabilities and some benefits under the occupational pension scheme. It may be possible for an Academy to agree an indemnity against any future losses related to inherited responsibilities from the Local Authority, prior to finalising the transfer.

Unions

The Academy also takes over trade union recognition and any collective agreements with trade unions which were in place at the time of the transfer. Governing bodies should familiarise themselves with the terms of any such agreements as part of the Academy transfer process, so that they are fully aware of their responsibilities.

Consultation

The TUPE Regulations require both the existing employer and the new employer to inform/consult with staff in a TUPE situation. In a transfer to Academy status the school governing body is both the old employer (along with the Local Authority) and the new employer. The governing body therefore has a duty to inform/consult with all affected staff about the transfer through either a recognised union or elected employee representatives. Governing bodies should comply with the information and consultation requirements but this may not always be possible because of time constraints. If challenged they would have to have good reasons for not informing/consulting.

Did you know?

Acas runs practical Training courses to equip managers, supervisors and HR professionals with the necessary skills to deal with employment relations issues and to create more productive workplace environments.

View related Acas training and course dates in your area for:

Our Senior Advisers can provide tailored advice/training on:

  • Changing working patterns and hours
  • Mergers and integrating groups of employees
  • Contracts and terms and conditions
  • Communication and consultation
  • Managing staff redundancy programmes
  • Looking at alternatives to redundancy
  • Working with trade unions
  • Using agency workers
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