MAT as an employer - HR and employment conference for school leaders 2016

HR conference for school leadersMAT as an employer workshop

MAT as an employer Your people strategy including employment terms and harmonisation

Emily Addai, Solicitor, Browne Jacobson LLP

Eleanor Drabble, HR Consultant, Browne Jacobson LLP

11 October 2016

Agenda

• Developing as “one employer” • Developing your people strategy

• Decision making in a MAT• Legal issues

– harmonising T&Cs– changing T&Cs– changing HR policies

• New schools joining the MAT

Developing as “one employer”

MAT as “one employer”

MAT is the employer not the individual schoolsBenefits of “one employer” approach

– ensures fairness and consistency – reduces risks of tribunal claims and grievances – creates a cohesive workforce– creates a shared culture and vision

The common journey to a MAT

Lead school MAT

New school joins

New school joins

How do you ensure “one employer” in this model?

New school joins

Schools within the MAT

Because different schools are likely to have different:• cultures• ways of working• policies, rules and practices• structures and levels of accountability

Need to consider how to address these issues

Issues for the lead schoolThere are also going to be issues for the lead school:

• headteacher may become the CEO/Executive HT so may not be around all the time (impact on the lead school)

• staff may move to support new schools (impact on lead school and the employees)

Your work programme Creating “one employer” does take time - decide your priorities:

• audit of current issues (what is going on?)

• deal with capability/legacy issues (legacy performance issues may be key)

• check processes are robust across the MAT

• create a set of MAT- wide HR policies/contracts

HR auditYou may wish to carry out a personal file audit:

Compliance and Consistency

File Personal details Recruitment Payroll

Contractual information

and variationsAbsence Accidents Training Employment

procedures

Termination of

employment

RAG Rating

1

2

Single Central Record checklist

Type of check What must be recorded on the SCR Tick to confirm

Identity checks Name (forename and surname), Address, Date of birth, Date employment started,

Position held, What evidence has been seen, by whom and the date

DBS check with barred list check where a person will be engaging in regulated activity

Evidenced By Date Check Completed (the date entered on the cleared DBS disclosure) DBS disclosure number (given on the cleared DBS disclosure).

Checks to confirm the right to work in the UK

The evidence seen to verify this right The date the evidence was seen and by whom. For those with limited leave to remain/work in the UK, the SCR must also record

any relevant expiry dates and the most recent date the evidence was checked.

Verify professional qualifications

Whether or not a qualification is a legal requirement for the post If so, what the required qualification is The date which evidence was seen and by whom. If the post does not require a qualification enter’ N/A’.

Additional checks where the appointee has lived or worked outside the UK

in one location for 6 months or longer in the last 5 years

Whether or not any additional check(s) was required If so, evidence of additional checks carried out The date the check(s) was undertaken Who carried out the check(s)

Prohibition from teaching check

Date Evidenced, Date Completed (the date the prohibition check was carried out and confirmed), Evidenced By’ (who carried out the check)

Within the ‘Notes’ box either of the following: ‘No active sanction’ for those that have no sanctions and ‘Active sanction’ for those that have any further information.

Barred List Checks

Date Evidence Seen, Evidenced By, Date Check Completed If carried out as part of the DBS then these dates should reflect those recorded for the DBS Disclosure.

Section 128 check (management positions only) – academies only

Evidenced By Date Check Completed

You will want to check each school’s SCR

Issues with “one employer”

• TUPE obligations• Schools joining from different local authorities• Schools joining MATs at different times• Union issues

Developing a people strategy

How will you manage your people?

How do you get from A to B?

A. What type of

employer are you?

B. What type of

employer do you

want to be as a MAT?

What is a people strategy?Allows you to:

• address school/academy priorities through people-related activities

• set people goals (what you want to achieve)• develop an action plan of activities (what you will

do to achieve the goals)• track progress on meeting the goals (how well you

are doing)

Allows you to integrate schools in to the MAT

Your people strategy

School strategy

People strategy

School vision

School values School

priorities and

objectives

School improvement plan

People goals

Action plan

ResultsOngoin

g Monitor

ing

Example people goals

Develop capability across the MAT to ensure excellent teaching and learningEffective structures and work force planning in place to deliver our priorities Development of MAT-wide policies and procedures

Your action plan - 1Goal Objective Purpose , details and action Target

datesLead

1 . Develop capability across the MAT to ensure excellent/effective teaching and learning

Effective performance management in place

Implement Trust-wide appraisal process for support staff

Improve leadership capability across the organisation

Concerns with performance are dealt with consistently and in a timely manner across the Trust. Support is put in place and action taken to deal with poor performance.

Robust but fair and consistent process in place across all schools in the MAT that is supportive yet deals with issues in a timely manner.

Identify areas of concern and put in place strategies to improve leadership including training, mentoring and dealing with poor leadership performance

Your action plan - 2Goal Objective Purpose , details and action Target

datesLead

2. Effective structures and work force planning in place to deliver our priorities

Review of organisational structures

Workforce plan

To ensure fit for purpose structure, that are able to deliver flexibility and opportunities for development. Carry out a review of [teaching, support, leadership] structures to identify efficiencies. Consider TUPE issues as part of consideration

Develop a plan that sets out what roles are needed in the Trust, how many and what skills are required to ensure the best possible education for our students

Your action plan - 3Goal Objective Purpose , details and action Target

datesLead

3. Development of MAT-wide policies and procedures

HR policies – fit for purpose

Improve communications between academies

Consistent ways of working across the Trust (operating procedures)

Policies are legally compliant and reflect what we want to achieve as an employer and help us achieve success. Revised policies are consulted on and implemented

Develop effective ways to improve communications methods both within and across the schools to improve employee engagement in the organisation and better ways of working

Audit decision making and procedures in the schools and set out a MAT-wide agreed approach to operating procedures to ensure consistency

Decision making in a MAT

Who makes decisions in the MAT?Hiring and firing

• but there may be other discretionary powers that you may wish to make at a Trust-wide level for example extension of sick pay

• need to determine the role of The Board v local governing bodies

Trustees Executive Principal LGB PrincipalHR AND OPERATIONS

Appointing of cross-Trust Staff (in line with recruitment policy)

Review of process Appoint and report to the Board

Appointing Academy Staff Appoint (in consultation with the Principal)

Recommend (or in some cases appoint)

Establishing Trust wide HR Policies

Determine the policies

Review of policies and application

Comply – will follow agreed policies

Review of policies and application

Comply – will follow agreed policies

Dismissing all non-senior staff Review of process

Report – to the Board

Review of process (in consultation with the Executive Principal )Comply – will follow agreed policies/proceduresReport – to the Executive Principal

Comply – will follow agreed policies/procedures

Setting Terms and Conditions of Employment

Determine – and consider any proposals by LGBs to make amendments

Recommend Consult - report to Board on any suggested changes to the Academy’s terms and conditions

Comply – will follow agreed policies/procedures

Some examples

Legal issues

Harmonising terms and conditions• Impact of TUPE

• Risks in not harmonising

• Equal pay v TUPE

Question: join in with sli.do #BJHR16

If there is a TUPE transfer, when can you change terms and conditions?

A. neverB. when there is an ETO reasonC. when the change is unconnected to the transferD. after 2 years

Impact of TUPEAny changes to employees' terms will be void if the sole or

principal reason for the change is the transfer itself. However, contractual variations will be permitted if:a) the sole or principal reason is an economic, technical or

organisational reason entailing changes in the workforce (an ‘ETO reason’) and the employer and employee agree that variation; or

b) the contract allows the employer to make that variation.

May also be permitted where the changes are part of a wider reorganisation (which is nothing to do with the transfer).

No fixed period of time beyond which harmonisation can take place without it being treated as resulting from the transfer.

Harmonisation and TUPE

Putting all employees that transfer into the MAT on a MAT contract is what is known as ‘harmonisation’.

• likely to be because of the transfer• unlikely to be ETO reason

What if the changes are beneficial to the employees?

• principles of TUPE still applyWhat if the employee agrees?

• still likely to be because of the transfer (and therefore void)

• the employee could challenge the change later and seek to rely on the old contract

Options for harmonisationDismissal and reengagement

• automatically unfair dismissal• settlement agreement?

Seek agreement• how different are the Trust’s terms from the terms

they have inherited?• unions?

Risks in not harmonising

Workforce may be on different terms where they have transferred in from:

• different Local Authorities;• another Academy Trust or Multi Academy Trust• a service provider e.g. catering or cleaning

Good record keeping required

Equal pay v TUPE

Potential risk BUTPossible defence

• the employees are on different terms because the Trust has inherited those terms

• the difference is not because of gender

Consider whether there are areas of particular risk

Changing terms and conditions

New staff (TUPE

transfer)

TUPE protec

tion

Existing T&Cs

Existing staff

TUPE protec

tion

Existing T&Cs

New joiners

No TUPE protecti

on

New standard T&Cs

Existing staff

(promotions)

TUPE protection for existing terms only

Offer new

standard T&Cs

Changing terms and conditions

Changing standard T&Cs

Consider what terms you want to offer e.g.• redundancy payments• sick pay• maternity pay

Recruitment risks

Changing HR policies

TUPE will not apply if the policies are not contractual

How to check?

What can you do if they are?

How to change non-contractual HR policies – This would amount to normal “business change”

Consulting on new HR policiesNeed to consult on introducing new policiesConsult with employees and recognised trade unions - in line with your recognition document (if you have one)Depending on whether your MAT is based in one local authority area, then you will either consult with area or national trade union repsSuggest 2-4 weeks for consultation on changing policiesConsider issues raised and respond before implementation

New schools joining the MAT

Setting out your intentionsIn the Section 13 “measures” letter – set out that new

schools joining the MAT will with immediate effect be subject to MAT’s suite of HR policies:– “ No Ordinary Multi Academy Trust has developed,

following consultation, a suite of HR policies that apply to all academies across the Trust. This ensures a fair and consistent approach to the management of people issues. These policies would apply to all schools joining the Trust from the date of their conversion”.

What about ongoing issues?

Question: join in with sli.do #BJHR16

Does your MAT currently have a centralised function, such as admin team or finance team?

• yes• no

Question: join in with sli.do #BJHR16

Is your MAT considering centralising any functions?

• yes• no

Restructuring new schools joining the MAT

Centralised teams?

When should restructuring

be carried out?

TUPE Retaining on site

resources?

Redundancy pooling

Any questions?

Further information www.brownejacobson.com/education

Please noteThe information contained in these notes is based on the position at March 2016 . It does, of course, only represent a summary of the subject matter covered and is not intended to be a substitute for detailed advice. If you would like to discuss any of the matters covered in further detail, our team would be happy to do so.

© Browne Jacobson LLP 2016. Browne Jacobson LLP is a limited liability partnership.

Contact us

Emily Addai0115 976 6501emily.addai@brownejacobson.com

Eleanor Drabble0161 300 8023eleanor.drabble@brownejacobson.com