CHAPTER ONE

WHO IS THE EMPLOYER?

Introduction

In this chapter, we will look at some of the considerations in determining whether a person is employed, self-employed, or a worker; then look in more detail and the provisions in maintained Schools around appointment, suspension and dismissal.

Employee, Self-Employed or Worker

For the vast majority of time, those within School will be employees, working under a contract of employment with the School, Academy, or Local Authority. However, there are occasions where a School might engage with a ‘casual’ member of staff. There has been a huge amount of litigation over the years in this area; most recently centred around the gig economy, particularly the taxi app Uber.

You may ask why it matters: and the reason is all down to the rights granted to Employees, and those that can fit into the category of ‘worker’: who, whilst not employees, nevertheless are entitled to paid holidays, for example.

So how do you make a call in School between the different categories? The first thing to do is to look at any contractual documentation. If there is an Employment contract in place, the answer is straightforward. If it is a self-employment agreement (for example for a consultant), important points in favour of it being genuine self-employment include a right of substitution (i.e. the right to send another individual instead to do the work they are engaged to do), responsibility for tax resting with the individual, and from a practical point of view you should also check they have indemnity insurance.

Remember always that the trend in the Courts is to protect the rights of the individual, giving them ‘worker’ (if not Employee) rights. The Courts will go behind an Employment contract if it is a sham, and look at the position on the ground: if the Employer/Organisation retains a sufficient degree of control over the individual, they are likely to be classed at least as workers.

Types of School

There are a dizzying array of different Schools within the education landscape; but all can be categorised into three main types:

• Academies (including multi-academy trusts);

• Maintained Schools; and

• Independent Schools

Within Academies, MATs and Independent Schools, identifying the correct Employer is relatively straightforward: the Employer will be the Academy Trust, or the organisation by which the independent school is owned or run. It is important that the correct employer is stated on the contract of employment; note also that should this change for any reason, Employees must be sent notification of the change in writing. This can be done either by the issue of an updated contract, or by a side letter. The time limit for doing this is within one month of the change in question.

In a maintained School, the position as to who the correct Employer is can be confusing. If in any doubt, the quickest place to look is the latest OFSTED report which will confirm the type of School under the heading ’School Details’.

Type of School	Employer
Community	Local Authority
Community with Delegated Budget	Governing Body (although any Tribunal award will be enforceable against the governing body)
Community Special	Local Authority
Community Special with Delegated Budget	Governing Body (although any Tribunal award will be enforceable against the governing body)
Voluntary Controlled	Local Authority
Voluntary Controlled with Delegated Budget	Governing Body (Although any Tribunal award will be enforceable against the governing body)
Foundation	Governing Body
Foundation Special	Governing Body
Voluntary Aided	Governing Body

Note also that those Employees who have been employed at a voluntary-aided School since before 1996 will retain the Local Authority, rather than the Governing Body, as their Employer.

Aside from an academic point of interest, why does all this matter? Unfortunately, different regimes apply to different types of School, dependent on the type of School. This is particularly the case in the areas of appointment and dismissal. The overarching framework is laid out in the School Staffing (England Regulations) 2009, the important features of which are detailed below.

Schools Staffing (England) Regulations

The Schools Staffing Regulations govern the powers of the Employer of appointment and dismissal within the maintained sector; broadly speaking delegating authority in appropriate cases for day-to-day matters to the Governing Body in cases where the Local Authority is the Employer. The current version is the 2009 version, and note that there are very similar (although not identical) Regulations covering Wales; which fall outside the scope of this work.

There are some overriding duties: for example, the duty to establish procedures for conduct and discipline of staff, as well as the duty to establish capability procedures. The Regulations distinguish between Community, Voluntary Controlled, Community Special and Maintained Nursery Schools (I.e. Those Schools were the local authority is the employer); and Foundation, Voluntary Aided and Foundation Special Schools (I.e. Those schools were the governing body is the employer). For ease, I will refer to these Schools as Types A & B respectively. To give a brief precis of the responsibilities on appointment and dismissal:

Function/Role	Type A School (Community Voluntary Controlled, Community Special, Maintained Nursery Schools)	Type B School (Foundation, Voluntary Aided and Foundation Special Schools)
Appointment of general staff	• Governing Body selects, and authority employs under contract of employment	• Governing Body selects and employs • Local Authority may offer advice to the Governing Body
Pre-recruitment checks	• Governing Body responsible	• Governing Body responsible
Appointment of Head and Deputy	• Governing Body must notify the local authority of vacancy. • Panel of 3 governors to conduct the selection process. • For Head Teacher roles, Governing Body must notify the local authority of those shortlisted. • Local Authority can make written representations if they think any individual is not suitable for a post. • Local Authority will appoint the person selected. • Process can be circumvented to avoid advertising the role and conducting a selection process where the governing body has a ‘good reason’. • Local Authority can decline to appoint person selected by Governing Body.	• Governing Body must notify the local authority of the vacancy. • Panel of 3 governors to conduct the selection and appointment process. • Governing Body can refuse to appoint the person recommended by the selection panel. • For Head Teacher roles, Governing Body must notify the local authority of those shortlisted. • Local Authority can make written representations if they think any individual is not suitable for a post. • Process can be circumvented to avoid advertising the role and conducting a selection process where the governing body has a ‘good reason’.
Appointment of other Teachers	• Governing Body must provide Local Authority with a specification for a post for any appointment longer than 4 months. • Governing Body will select – although no statutory selection process (as there is for Headteachers). • Local Authority can decline to appoint person selected by Governing Body.	• Governing Body must provide Local Authority with a specification for a post for any appointment longer than 4 months. • Governing Body responsible for appointment.
Appointment of Support Staff	• Governing Body recommends person it has picked for appointment. • Must provide local authority with identity of person, job specification – including grade and remuneration. • Authority entitled to make representation if it is of the view grade/remuneration is incorrect. • Governing Body must consider those representations and notify the authority in writing of its reasons if they don’t follow the recommendation.	• Governing Body responsible.
Appointment of Supply Staff	• Governing Body must ensure pre-employment checks are obtained.	• Governing Body must ensure pre-employment checks are obtained.
School Meals Staff	• Local Authority responsible for appointment, discipline, suspension and dismissal. • Must consult with Governing Body before doing any of these functions.	• Governing Body responsible for.
Suspension of Staff	• Governing Body or Head can suspend . • Must immediately inform the Local Authority when a person is suspended. • Only Governing Body can end suspension. • Must immediately inform the Local Authority and the Head when suspension is ended.	• Governing Body or Head can suspend. • Only Governing Body can end suspension.
Dismissal of Staff	• Governing Body to make decision • Governing Body must notify the Local Authority. • Local Authority to terminate the contract within 14 days of receiving notification from the Governing Body.	• Governing Body responsible.

Education (Independent Schools Standards) Regulation 2014

In relation to independent schools and academies, subject to some limited exceptions, staffing issues are covered as far as necessary by the Education (Independent Schools Standards) Regulations 2014. These Regulations provide that pre-employment checks must be conducted before employment (I.e. Appropriate DBS Checks, proof of the right to work in the UK, medical fitness and qualifications as applicable). Similar checks are needed to ensure the suitability of a proprietor of such a School, or the Chair of the Trust where the School is a body corporate – e.g. in the case of an academy/multi-academy trust. Such checks are not normally needed for a member of staff being employed without a break from a maintained school.

Other than the pre-employment provisions, independent schools and academies have a relatively free hand in relation to appointment and dismissal: subject of course to the general law on unfair dismissal, which is discussed later.

Summary

As can be seen, the situation as to the employment status of individuals working within Schools can be quite difficult to ascertain. An audit of the processes adopted within the maintained sector, particularly around suspension and dismissal, is important given the restrictive provisions of the School Staffing (England) Regulations. As ever, the paper trail will be crucial.

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