TUPE Q and A

THE TRANSFER OF STAFF TO ACADEMIES

FREQUENTLY ASKED QUESTIONS

Who employs staff within an Academy?
Academies operate independently of the local authority. The Trust Board of the Academy is the employer of staff working in the Academy, and the staff are no longer employed by the local authority.

What is TUPE?
TUPE stands for the Transfer of Undertakings (Protection of Employment) regulations. It is the law governing the transfer of any trade or business to another. Broadly speaking, the TUPE regulations are designed to protect the rights of staff who transfer.

How do I know if I will transfer to the new Academy?
If you have a contract of employment that continues beyond the date the school/college are becoming an academy, then you will automatically transfer to the employment of the Academy.  If your contract of employment ends before the first day the school/college are operating as an Academy, then you will not transfer to the Academy.

How will the transfer affect my terms and conditions of employment? (check measures academy plans to take)
Teachers should note that they will continue to be employed on the School Teachers’ Pay and Conditions for Teachers; support staff will continue to be employed on National Joint Council conditions. The new employer takes over all rights and obligations arising from contracts of employment, except criminal liabilities. 

Is there a time limit within which the new employer cannot change the terms and conditions of employment?
No, there is no time limit on TUPE protection relating to terms and conditions of employment. All employers have the right to make changes to aspects of your employment through discussion and consultation; the Academy will have this right in the same way that the school does now. Terms and conditions (including national terms and conditions) may be altered subject to due consultation with you and your trade unions.  If the new employer wishes to introduce change it must show that there is a good business reason for the change. Your terms and conditions cannot be altered if the sole or principal reason for the change is the transfer itself – this is unfair in law – unless this is for what is called “an Economic, Technical or Organisational reason entailing changes in the workforce”.

What is an “economic, technical or organisational” (ETO) reason?
There is no statutory definition of this term, but it is likely to include:

    • an economic reason, e.g. lower funding due to fall in school roll;
    • a technical reason, e.g. streamlining technical processes; or
    • an organisational reason, e.g. change in curriculum requirements/re-organisation

What will happen to my pension?
If you are currently a member of either the Teachers’ Pension Scheme or the Local Government Pension Scheme this will continue unaffected. If you are not currently a member of either of these schemes, you will be entitled to join after the transfer date. For the Local Government Pension Scheme, you will automatically be enrolled unless you opt out.

Will my continuous service be broken by transferring to an Academy?
An employee’s continuous service is not broken by a transfer and, for the purposes of calculating entitlement to statutory employment rights, the date on which the period of continuous employment started would usually be the date on which the employee started work with the old employer.

Can I be dismissed as a result of the transfer?
The TUPE regulations give additional protection to employees against unfair dismissal. You cannot be dismissed by either employer because of the transfer unless it is for an economic technical or organisational reason (ETO) entailing changes in the workforce. In these situations, changes to contracts or dismissals may be proposed. If there is an ETO reason, and it is the cause or main cause of the dismissal, the dismissal will be fair provided an employment tribunal decides that the employer acted reasonably in the circumstances in treating that reason as sufficient to justify dismissal.

Do I have to transfer to the Academy, or can I choose not to?
It is not compulsory for you to transfer to the Academy. Under the TUPE regulations you can object to the transfer of your employment, and then you will not transfer to the Academy. The effect of objecting to the transfer is to terminate the contract of employment; there will be no dismissal in law, and employees will not be entitled to claim unfair dismissal or receive a redundancy payment. If you are considering objecting to the transfer of your employment you are strongly advised to seek advice either from your Trade Union or Human Resources.

What if I am employed on a Fixed Term, Temporary or Casual Contract?
Staff employed on this basis who are in employment at the point of transfer will transfer under their current terms and conditions. For example, if you are employed on a fixed term contract that is due to end on 31st December 2016, then your employment will transfer to the Academy with an effective end date of 31st December 2016. If you work at the school on a casual basis you will not TUPE transfer, however the Academy may still have a need for casual staff, meaning opportunities might still exist.

I will be on maternity leave when the transfer takes place, will I still have the right to return to the same job?
All employees have the same TUPE rights when on maternity leave as if you were at work. 

What happens if I work in the School but am employed by the Local Authority or an external contractor (e.g. Cleaning or Catering services)? 
The Academy has a number of options available regarding services such as cleaning and catering etc, in the same way that school does now. If the Academy chooses to continue with the contracts that are currently in place, your employment will be unaffected.  If the Academy chooses to appoint a new service provider, or bring the service ‘in-house’, then TUPE may apply and your employment might transfer. TUPE will only apply if you are employed ‘wholly or mainly’ to work at the school becoming an Academy. In this case, you will either transfer to become an employee of the Academy, or transfer to the new provider of the service.

Will the trade unions be consulted in relation to the TUPE transfer?
Yes.

Will Trades Unions be recognised by the new Academy?
Yes, trade union recognition transfers to the new employer for existing staff. A new recognition agreement may however be drafted to include new staff employed by the Academy.

What information will be given to the new employer?
The Regulations place a duty on the original employer to provide information about the transferring workforce to the new employer before the transfer occurs.

Who can I contact if I have any further questions about TUPE?
For further information or advice, please contact your trade union representative or HR Direct on 01392 385555.