CHAPTER ONE – WHO IS THE EMPLOYER
A key question for any employment practitioner; you could even say crucial – for how else do we know who to sue? But in the Education sector, this is not always an easy question to answer. In this chapter, we will examine both the different types of Schools within the sector, together with specific rules peculiar to the differing types. We will conclude with a look at the key provisions of the School Staffing (England) Regulations 2009; and the impact these Regulations have on advising Schools within the maintained sector.
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.
In a maintained School, the position as to who the correct Employer is can be confusing. It is not unknown for maintained Schools themselves to be confused and/or incorrect. Standard practice to verify this information used to be to obtain the up-to-date OFSTED report to verify the information provided on instructions which provided this information at the end of the report.
Unfortunately now the OFSTED regime has far fewer inspections than previously and so instead I would recommend that you make use of the government website, “Get Information about Schools” (https://get-information-schools.service.gov.uk/) here when searching for schools you can check the type of school and if it is part of a Multi-Academy Trust, the name of that Trust.
Furthermore, although the position is improving, Tribunal Judges (and opponents, for that matter) can also find the situation confusing. This can particularly be the case when, for example, the correct Employer is the governing body of a maintained School; but the award can be enforced against the relevant local authority: as in the case of a Community School with a delegated budget.
It is not unusual if acting for any type of School in a Tribunal Claim to have your first task at any Preliminary Hearing identifying the correct name of the employer after the opponent has brought claims against the name of the school, the governing body and the multi-academy trust/ local authority.
I can do no better than re-produce the table that proudly adorns our office wall to assist us in identifying the correct employer in the maintained sector:
| Type of School | Employer | Statutory Reference |
| Community | Local Authority | s.35 Education Act 2002 |
| Community w/delegated budget | Governing Body (awards enforceable against LA) | Education (Modification of Enactments Relating to Employment) Orders |
| Community Special | Local Authority | s.35 Education Act 2002 |
| Community Special w/delegated budget | Governing Body (awards enforceable against LA) | Education (Modification of Enactments Relating to Employment) Orders |
| Voluntary Controlled | Local Authority | s.35 Education Act 2002
|
| Voluntary Controlled w/delegated budget | Governing Body (awards enforceable against LA) | Education (Modification of Enactments Relating to Employment) Orders |
| Foundation | Governing Body | s.36 Education Act 2002 |
| Foundation Special | Governing Body | s.36 Education Act 2002 |
| Voluntary Aided | Governing Body | s.36 Education Act 2002 |
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. Note also the existence of The Staffing of Maintained Schools (Wales) Regulations 2006: although largely in similar terms to their English counterparts, there are some differences, which fall outside the scope of this work.
School Staffing (England) Regulations 2009
These Regulations apply to maintained Schools within the sectors.
The Staffing Regulations divide themselves into three main sections:
- Part 1 – General (i.e. Provisions relevant to all maintained Schools);
- Part 2 – Provisions relating to Community, Voluntary Controlled, Community Special and Maintained Nursery Schools (I.e. Those Schools where the local authority is the Employer);
- Part 3 – Provisions relating to Foundation, Voluntary Aided and Foundation Special Schools (I.e. Those Schools where the Governing Body is the Employer).
Part 1 confirms (Regulation 7) that it is the responsibility of the Governing Body to establish disciplinary and grievance procedures. Even though they may in practice adopt the local authority procedures, a note of this adoption (and the adoption of subsequent amendments and alterations) ought to be made within the minutes of the governing body meeting that confirms this. Similarly, note here there is no obligation on the School to adopt the local authority procedures. If they do not, they must adopt their own procedures, and are likely to have to reach a collective agreement with recognised trade unions in respect of those policies.
However, in the case of all maintained Schools, Regulation 6 provides the Local Authority with the power to make written representations to the governing body in the event of ‘serious concerns’ as to the performance of the head teacher. A copy must be sent to the head teacher, and the governing body are required to notify the authority of the action they propose to take in light of the report.
Regulation 8 requires the governing body to establish capability procedures; and Regulation 8A confirms that if a request is received from another School as to whether a former member of staff had been the subject of capability procedures in the last 2 years, the governing body must provide written details to that subsequent School.
Regulation 8A should therefore be considered in the drafting, or advising on, any settlement agreement involving staff at a maintained school. As a statutory obligation, a school ought not to be derogating from this responsibility, and it is important to consider this when, for example, agreeing an agreed form of reference.
This Regulation can also help when advising an employer faced with an obviously agreed reference appearing to emanate from a settlement agreement. If this is the case, and the former employer is a maintained school, the employer could make a written request pursuant to Regulation 8A: it may produce no result, but could avoid the potential hire of an undesirable employee who might otherwise appear acceptable on the face of an agreed reference.
The Regulations contain specific requirements for the appointment of staff members at various levels. Experience dictates that this rarely become an issue for practitioners, so it is outside the scope of this work to go into the mundane detail set out on this.
In Schools where the Local Authority is the ultimate employer (Community, Voluntary Controlled, Community Special and Maintained Nursery Schools), Regulation 19 applies to suspension. This confirms that the governing body or the head teacher has the power to suspend staff, but must notify the Authority immediately of the suspension. Only a governing body can end the suspension, and the governing body must immediately inform the authority and the head of the ending of the suspension. Reg 19 specifically prohibits suspension without pay.
Where the Governing Body is the employer (Foundation, Voluntary Aided and Foundation Special Schools), unless the staff in question are employed by the authority, the same provisions apply, save that there is no requirement to notify the authority.
Again, only the governing body may end a suspension, and suspension without pay is prohibited (Regulation 31).
In Birmingham City Council v. Emery, a case dealing with a Community School (in which the Local Authority is the Employer), the Employment Appeals Tribunal looked at the provisions of Regulation 20 of the School Staffing (England) Regulations 2009, which state:
- “Dismissal of staff:
- Subject to Regulation 21, where the governing body determines that any person employed or engaged by the authority to work at the school should cease to work there, it must notice the authority in writing of its determination and the reasons for it.
- If the person concerned in employed or engaged to work solely at the school (and does not resign), the authority must, before the end of the period of fourteen days beginning with the date of the notification under paragraph (1), either-
- Terminate the person’s contract with the authority, giving such notice as is required under that contract; or
- Terminate such contract without notice if the circumstances are such that it is entitled to do so by reason of the person’s conduct.
- If the person concerned is not employed or engaged by the authority to work solely at the school, the authority must require the person to cease to work at the school”1
Ms Emery was employed as a teacher at the school under a contract of employment. Her contract of employment provided for termination with two months’ notice expiring on the 30th April or with four months’ notice expiring on the 31st August but not on any date in between. Because the school was a community school, the local authority was her employer, Regulation 20 provided that if the governing body determined that she should be dismissed, her employment had to be terminated by the authority. On February 28, a meeting of a panel of governors (which was attended by a representative of the local authority) determined that Ms Emery ought to be dismissed. The local authority representative stated that the date of dismissal was the date of the meeting; that she was entitled to contractual notice pay, ending 30th April, and that a letter confirming the dismissal would be sent to her. Whilst the governing body wrote to her on the 28th February, confirming that the local authority would be terminating her contract on notice ending April 30; it was not until the 29th February 29 that the local authority wrote to her formally terminating her employment as of the 30th April.
Ms Emery did not receive the letter until the 1st March. In the employment tribunal, the judge concluded that the letter was one day too late to give her the notice to which she was contractually entitled and awarded her a further four months’ pay.
Although the Authority argued that the employment had been ended by either the governing body or the representative of the local authority at the meeting on the 28th February, that was not accepted by the EAT.
The letters produced specifically countermanded that view. Furthermore, it was accepted by the EAT that the Regulations to not permit a delegation by a local authority of what is their statutory obligation imposed by Regulation 20.
There is an interesting aspect to the Regulations cited: the authority clearly has some limited decision-making role; and the authority has to carry out its statutory duty. If they fail to do so, either on time (the authority has 14 days), or at all, this can have a serious effect on the Employees.
Regulation 20 does not on the face of things give the authority an option: they must terminate the employment within 14 days either with or without notice as the case dictates. I would always advise checking this point, particularly if running an unfair dismissal case for a member of School staff: it may turn out they may not have been dismissed at all; for example, if the authority has overlooked confirming the dismissal.
I would also bear in mind the effect of the decision of the Supreme Court in Haywood v. Newcastle upon Tyne [2018] UKSC 22 which has a bearing on this situation. In that case, the Employee was sent a letter by recorded delivery on the 20th April: notifying her that she was dismissed by reason of redundancy and providing 12 weeks notice. At the time, she was on holiday; and in the event she did not read the letter until the 27th April.
At issue was the actual date of dismissal: specifically whether this was before of after the Employee’s 50th birthday, which had a bearing on her pension entitlement. The Court agreed that the contents of the letter had to be communicated to the Employee before it took effect: and in this case that was the 27th April, so that the employment was not terminated until after the Employee’s 50th birthday.
This can obviously have a significant bearing within the Education sector: not only since most (if not all) Employees will be members of either the Teacher’s Pension Scheme or the Local Government Pension Scheme – both of which have distinct age related benefits (for example, in the case of redundancy); and due to the specific notice periods for teachers in the maintained sector provided by the Burgundy Book. For example, if notice is given on 30th April, notice will expire on 31st August, if notice is given one day later on 1st May, notice will instead expire on 31st December.
As Tribunal rules generally state that notice is not valid until it is received by an employee, it can often be worthwhile to ensure notice of termination is given verbally as well as in writing when coming close to these notice period dates.
In Davies v. Haringey LBC [2014] EWHC 3393 (QB) the Claimant, a full-time trade union representative ostensibly employed at a Community School argued that the Local Authority had no power to suspend and/or discipline her. Although not the only reason that forms part of the ratio of the case, nevertheless the High Court accepted that the School Staffing (England) Regulations 2009 were sufficiently drafted so as to allow the
Local Authority to suspend and discipline the Claimant; utilising the Local Authorities disciplinary procedures rather than those of the School.
The Claimant had been released for the last 14 years of her employment and then suspended pursuant to an allegation that she had breached the authority’s Code of Conduct and Social Media Policy: the allegations were unrelated to her teaching. Her argument that both the School Staffing Regulations and the Education (Modification of Enactments Relating to Employment) (England) Order 2003 (the “Modification Order”) effectively meant that the material employment powers were held exclusively by the School was unsuccessful.
The Judge in that case interpreted Regulation 19 of the School Staffing (England) Regulations (which deals with the suspension of staff) as not granting exclusive power to the governing body or Headteacher to suspend; and also confirmed that the Modification Order has no bearing on the parties contractual rights.
This principle could be particularly useful for local authority faced with a similar situation: or for a small School without the resources to conduct a thorough investigation; or, for example, in the case of the Employee in question having some sort of conflict with the governing body. Wherever it is employed, good practice would be to produce a formal note of the proposed course of action at the relevant meeting of the governing body, or subcommittee, as the case may be. It is also important to ensure that the Employee understands the process to be adopted to avoid a potential finding of procedurally unfair dismissal.
Identity of the correct Employer of course makes a difference in the drafting of pleadings: but consider also the effect in drafting settlement agreements. A drafting error here could well lead to a negligence claim.
My own preference in any case where the Employer is ultimately the Local Authority is to include both the Local Authority and the local governing body as parties to the agreement: thus being both ‘bullet-proof’; and also settling any potential standalone case of discrimination against the governing body. This is of course only possible where one is instructed by both the Local Authority and the governing body.
Summary
As can be seen, identity of the correct employer when advising any School is crucially important. Practitioners should take care in naming the correct Respondent in Tribunal or Court proceedings, and for those that represent Respondents, to correct errors in this respect. An audit of the processes adopted within the maintained sector, particularly around suspension and dismissal, is also important given the restrictive provisions of the School Staffing (England) Regulations. As ever, the paper trail will be crucial, and there are certainly traps for the unwary or unexperienced practitioner to be aware of.