DFE Policy
There has been no official guidance about conversions next term and for September. It’s unclear whether any of the Headteacher Board meetings are taking place and many applications appear to be on hold. It’s possible that Regional Schools Commissioners are able to give approval and progress applications which have already been approved in principle as part of an approved MAT growth plan or there is a directive academy order, but fresh applications are unlikely to be approved.
It is worth noting that all “significant changes” applications following the publication of revised Significant Changes Guidance in November last year (click here for details) are now considered by the RSC.
The DfE have not cancelled conversions next term and for September and our experience is that they will simply be guided by the schools and Local Authorities. In some respects the longer the lockdown is maintained, the more need there is to ensure some progress is made. Where the focus of academy conversion is securing school improvement support, any delay may well cause real problems down the line and therefore perhaps greater effort should be made now to conclude conversion steps so that the school leadership team can start to move on confidently in September.
It may be prudent however to build in some delay as LA capacity, which is stretched at the best of times, is likely to be compromised as they respond to social care challenges and securing adequate provision for pupils still attending schools.
TUPE and Consultation Generally
TUPE is a tricky question. Every academy conversion and transfer will involve a TUPE transfer of staff to the Multi Academy Trust. The NEU, NAHT and ASCL have issued a joint statement (Joint Union Advice on COVID 19) saying that no action should be taken during this time. That includes no restructure, no disciplinary steps and no consultation, particularly for academy conversion. That’s perhaps not entirely surprising, but this does not represent the legal position and employers are not barred from taking any normal steps albeit extra care must be taken to ensure fairness and transparency.
Whilst some schools we have been advising have decided a pause in conversion plans is prudent, others have pressed on and whilst in most cases this has been continuing what had started, we now have some schools who are starting consultation whilst in theory closed. We would advise a cautious approach and, if you can, assess how ready staff are to engage. It would obviously not be appropriate to add unnecessary pressure at this time. That would probably mean having an understanding of the general sentiment of staff towards conversion (enthusiastic, anxious, unconcerned?) and being prepared to take more time to engage as fully as possible. We see no reason why this cannot be wholly electronically with the option of one to one telephone calls where this is requested by staff.
It’s likely the LA and in particular the LA’s HR team will be stretched and so we suggest that progress can only be made where the MAT can provide either a high degree or pretty much all the HR support needed by the school who is carrying out the consultation. It’s likely there will be some questioning and possibly criticism from union reps (but probably only from those who don’t want conversion to happen anyway). There is no reason a virtual meeting cannot be held with union reps at the start and to talk through with them how the MAT sees this working.
We should also be mindful that the TUPE Regulations only require consultation where formal “measures” are contemplated as a consequence of the conversion (or indeed academy transfer). This would be more than simply information gathering but include an element of seeking the approval of staff. There is no express requirement for there to be a meeting, but that would be typical. The Regulations do provide however for the usual arrangements to be set aside in exceptional circumstances, which I think could easily be argued here.
In any event, it’s likely the school and the MAT are making no measures and as a consequence in strict legal terms there is no obligation to consult. Engagement with staff and union reps is a matter of courtesy and is good practice to help maintain good relations. Some thought will need to be given to the terms of the TUPE measures letter and we can assist with that.
Staff and parents can be updated through the website. There is plenty of guidance on conducting online consultations which tends to be the norm these days anyway for consultations by public bodies.
Other Preparatory Work
There are other steps that can be taken whilst schools are “closed”, which will minimise delays once things get back to normal:
- Due Diligence – Whilst an ongoing task in any event, it might be helpful to spend the time now reviewing finances, staff shortages and contract renewals with the view to coordinating with the MAT and the other schools in the MAT so that in principle decisions can be taken as to how arrangements will work once the conversion goes ahead.
- Working Together – All successful MATs are founded on a desire for schools to work together to increase opportunities and maximise impact. This should be happening now and perhaps there is no greater time for pulling together than in a time of national crisis. Some MATs have been using hub schools to ensure provision for vulnerable pupils and children of critical workers and the usual restrictions on staff deployment have been relaxed enabling schools to share staff to cover absences. There is no doubt that working together will be seen in a different light when schools re-open.
- Land Matters – In our experience the commonest reason for any delay in converting are issues that emerge in respect of land and buildings. Perhaps historic site sharing arrangements are undocumented, boundaries unclear or compromised, land unregistered and statutory transfers that have not yet been completed and registered. Many of these issues should be resolved anyway and are not consequent on academy conversion but now is a good time to get to grips with these.
Electronic Signatures
One practical issue that has now been resolved is the DfE’s acceptance of electronic signatures for funding agreements. Whilst this has legally been an effective method of signing documents (any documents) for some time, it has taken a while for organisations to adapt including local authorities and the Land Registry, but that is now changing. Electronic signing obviates the need for any physical document meaning we can start to save a few more trees.