«The conversion journey A step-by-step guide for schools converting to academy status Resource National College for School Leadership Contents ...»
Staff and their representatives are entitled under TUPE to be provided with certain information by their current employer about the transfer of their employment by their current employer. For voluntary-aided and foundation schools, the employer is the existing governing body and for community schools or voluntary-controlled schools, it is the local authority.
C.35: School governing body There is an obligation to provide written information about the transfer to employee representatives (see above).
Governing bodies should take specialist advice to ensure they comply. In some cases there will also be a duty to consult representatives and individual staff.
If the local authority employs the staff, you should formally notify the local authority that you have applied to become an academy so that the TUPE process can start.
Give the local authority as much notice as possible to ensure it has the time and capacity available to respond, to prevent your application being delayed.
D.35: DfE The secretary of state writes formally to the local authority confirming that your application has been approved.
This will happen a few weeks after your application is received, so you may wish to make direct contact with the local authority.
As soon as the proposal to convert to academy status has been approved, the formal TUPE information and consultation process can begin.
Writing to the employee A.36: School leaders The employer must provide specific information in writing to individual employees.
B.37: Local authority/diocese The local authority as the employer must provide specific information in writing to individual employees.
C.37: School governing body The governing body as the employer must provide specific information in writing to individual employees.
This information must include:
− the fact that the transfer is to take place, and when and why − the legal, economic and social implications of the transfer for the affected employees − the measures that the employer envisages it will take in connection with the transfer or, if no measures are envisaged, that fact − any measures that the employer envisages the academy trust taking in connection with the transfer in respect of the transferring employees or, if no measures are envisaged, state that fact Consultation with employees and union reps B.38: Local authority/diocese Local authorities are encouraged to consult employees and union representatives throughout the conversion process.
C.38: School governing body The academy trust is obliged to write to the current employers to inform them of any measures that the trust envisages taking in relation to staff once the transfer has taken place.
− The legal obligation for a local authority to consult employees under TUPE only arises where the current employer (and not the academy trust) envisages taking measures in relation to affected employees in connection with the transfer.
− The trust should provide the information to the current employer as soon as possible once the trust has had the opportunity to consider what measures it envisages taking.
− ‘Measures’ is a very broad term and encompasses any action, step or arrangement taken in connection with the transfer that affects staff or their working conditions.
C.39: School governing body Where the governing body is the employer of staff, it should obtain legal advice and/or specialist HR support on TUPE. The governing body may use part of the academy conversion expenses grant to cover the legal costs.
Due diligence exercise C.391: School governing body Carry out a due diligence exercise for all transferring staff in order to verify information on contracts, terms and conditions, pension deficits and so forth. Take particular care with staff who are not based exclusively at the school or who are on fixed-term contracts.
Supporting other schools A.392: School leaders It is up to the school to decide which school to support and what arrangements to put in place to meet the aim of raising standards across the system. Some may already be teaching schools and/or heavily involved in school-to-school support. Others may be members of a long-standing federation of schools that has a planned programme of school-to-school support.
There is flexibility in how you can support other schools. In our case, rather than focusing on one school, we help several by sharing good practice and we operate as a centre of excellence for teachers who want to come and see what we do.
School leader, primary academy, Lincolnshire C.392: School governing body Schools that choose to sponsor an underperforming school to become an academy should discuss the matter with their DfE contact. Plans need to be drawn up setting out how the school intends to offer support and what impact the support is expected to have on standards. The plans should include a timetable and make clear how soon after conversion the support programme will begin.
For some schools, support may mean improving existing links with schools they have been working with for some time. For others, it might mean a new relationship.
See Step 4: Pre-opening (sections A.6 and C.6) for further guidance on supporting another school.
CRB checks C.394: School governing body Academies must ensure that staff have undergone enhanced CRB checks and that the checks confirm their suitability to work with children and young people. Checks must also be carried out on the chair of the governing body, all governors and directors.
Claiming grant available for conversion C.395: School governing body A claim for the grant of £25,000 towards the costs of conversion should be made as soon as the application has been approved. It will be paid into the school’s bank account. It is not intended to cover all costs but to make a contribution to the costs of legal advice on documentation and staffing matters, HR advice for the TUPE process, and the transfer of software licences and data transfer. If a school is involved in a PFI contract and needs extra legal advice, there may be further support available.
Complete the claim form on the Department’s academies web pages and send it to your named DfE contact once your application has been approved by the secretary of state.
The chair of the governing body will also need to send the completed support grant certificate to your DfE contact to declare how much of the grant has been spent and whether any is being carried forward into the bank account of the academy trust.
DfE checks C.396: School governing body Let your named contact at the Department know if your school is part of a PFI contract.
D.396: DfE Once the governing body has submitted the application, the Department will undertake checks to ensure that the school is in a position to become an academy.
The Department will check whether:
− there have been any significant changes since the school’s last Ofsted inspection − there are questions about the school being in a position to support another school − the school has a substantial budget deficit − there are PFI arrangements to consider − the school is already part of a wider reorganisational proposal
The main objectives of this stage are to:
− finalise the necessary constitutional documents to establish the academy trust − identify the governors who will sit on its governing body − make and agree, with the local authority/diocese and other landowners as necessary, arrangements for the academy trust to occupy the school land and buildings The consultation that the governing body is required to conduct must be completed before the funding agreement is signed. The trust will then sign a funding agreement with the secretary of state, which becomes the legal basis for opening the academy on the date specified in the agreement.
Your named DfE contact will advise you on which documents you will need to complete and provide you with guidance on how they should be filled in. Model documents are used at this stage and amendments to these documents are only possible in limited circumstances. Any discussion of amendments is likely to delay the conversion process. You should also seek independent legal advice on the documents.
Some of the completed documents must be approved by the Department before they are finalised:
the details are set out in this document. As well as putting in place the necessary legal documentation, there are other important steps schools should take to be ready for conversion from the intended date.
Check necessary actions have taken place A4: School leaders and C4: School governing body Ensure you understand all the steps that are required to be completed before the funding agreement can be signed by the secretary of state. Clarify these with your named DfE contact, using the checklist below.
Schools must complete the following actions before the funding agreement
can be signed with the secretary of state:
Set up the academy trust, completing the memorandum and articles of association based on the Department’s model documents Use articles approved by DfE to register the academy trust with Companies House Complete and submit a draft funding agreement document for DfE’s approval and then a final version for the secretary of state to sign Ensure that a ‘Report on title’ has been completed, identifying all areas of land on which the school sits and who currently holds them, and agree land and building leasing or transfer arrangements with the current landowners (local authority, trust, diocese and so on, as applicable) Conclude consultation with interested parties Draw up an agreement with the local authority or diocese if either has made a loan to the governing body Draw up any agreements required for the completion of outstanding building work at the school, or the shared use of facilities on the school’s site Agree a commercial transfer agreement with the academy trust and, where necessary, with the local authority (for the transfer of staff, assets and contracts to the trust) Set up a bank account for the newly formed academy trust and provide details of the account to the Education Funding Agency (EFA) Appoint an accounting officer Follow the necessary steps for pension registrations and insuring the academy Continue (and ideally complete) the TUPE process if the governing body is the employer of staff. (The local authority will take this action if it is the employer.)
Role of the academy trust A.41: School leaders Understand all aspects of the make-up and role of an academy trust and the roles of governing body and/or directors of the academy trust before completing the memorandum and articles of association.
C.41: School governing body Understand all aspects of the make-up and role of an academy trust and the roles of governing body and/or directors of the academy trust before completing the memorandum and articles of association.
The academy trust − The academy trust (a charitable company limited by guarantee) will enter into a legally binding funding agreement (see below) with the secretary of state, relating to the running of the academy.
− The trust will have at least three members (those people who establish the trust) and they are responsible for appointing the governors/directors (who are also the directors and trustees of the trust).
− In practice, it will be for the members of the converting school’s governing body (in consultation with the converting school’s foundation, if you are a foundation or voluntary-aided school with a foundation) to decide who should be members of the academy trust and who should be governors. It is possible to be both a member and a governor, but the Department recommends that the number of members is kept relatively small.
− The exact composition of the board of governors/directors of the academy trust should be agreed between the trust and the secretary of state. It will be set out in the articles of association.
− There is scope for flexibility but there are certain minimum requirements about the number of parent governors and a restriction on the proportion of governors who can also be academy employees.