TUPE within Community and Voluntary Controlled Schools: A Guide

Written by Mark Radford

Who is the employer for TUPE purposes in community and voluntary controlled schools?

There are broadly four classifications of schools maintained by a local authority.

These are:

  • Community
  • Voluntary controlled
  • Voluntary aided
  • Foundation schools.

Often, voluntary controlled and voluntary aided schools are schools with a religious character.

Transfer of Undertaking Protection of Employment Regulations

When a school is involved in a transfer of employees pursuant to the ‘Transfer of Undertaking Protection of Employment Regulations 2006’ (TUPE) it is the responsibility of the employer to:

  • engage in the process of informing and consulting;
  • identify those employees who are to transfer from its employment or to receive incoming employees into its employment; and
  • to ensure that those employees, (who have the right to membership of a public pension scheme and who are subject to the transfer), transfer with their pension rights protected.

Getting the identity of the employer right is critical to all of these tasks.

So who is the Employer?

It is commonly thought that whilst a school has a delegated budget the employer will always be the Governing Body. Whilst this statement is broadly correct where voluntary aided and foundation schools are concerned, it is not correct for community or voluntary controlled schools.

That is because the Education (Modification of Enactments Relating to Employment) (England) Order 2003, which gives the governing bodies of community and voluntary controlled schools the power to act as though they are the employer, (whilst they have a delegated budget).

However, this only applies to enactments listed in the Schedule to the Order, and TUPE is not included in that Schedule. Thus, whilst the governing body decides whether or not there is to be a transfer for the purposes of TUPE, the transfer will be to or from the local authority.

Why does this matter?

It matters because

  • If the local authority does not engage in the process of informing and consulting and simply leaves the matter to the governing body, it can find itself as the respondent to TUPE related complaints for failures to inform and consult or for failures to provide TUPE information.
  • Similarly, if the local authority does not involve itself with correctly identifying those transferring in and out, it may find that it is asked to issue contractual paperwork or terminate contracts which it knew nothing about.
  • Finally, a local authority is bound by the Best Value Staff Transfers (Pensions) Direction 2007. The Direction obliges local authorities to ensure (amongst other things) that its employees receive continued membership of their relevant public sector occupational scheme or receive an equivalent. Where there is a TUPE transfer from a school to a private sector provider, the only way in which the local authority can make sure that pension rights are protected is to involve itself with the contractual documentation to ensure that appropriate contractual provision is included. If no such provision is included and an inferior pension is provided, then a local authority can find itself liable for funding the cost difference between the statutory occupational pension scheme and the inferior scheme provided.

If you require any guidance at all regarding this area, including guidance on the TUPE process, please do not hesitate to contact our Dispute Resolution and Employment team.

Contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute professional or legal advice. Invicta Law cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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