When academies were first introduced, they were sold on the basis of the flexibility they could provide, allowing schools to operate more commercially and determine their own terms and conditions. Despite many schools having converted, the majority have not taken the opportunity for substantial change, preferring to maintain the status quo and follow broadly similar terms to those applied by the local authority. Whilst this may be appropriate, it is worth ensuring this is an active choice, rather than simply maintaining the default position without question. An obvious area to start focusing on is pay.
While maintained schools must pay their teachers according to a nationally agreed pay scale (outlined in the School Teachers Pay and Conditions Document (STPCD)), academies are free to set their own pay and conditions for teachers.
This freedom is curtailed to some extent for staff who transferred during the conversion process. Under TUPE regulations, such employees have a right to transfer to the academy on their existing pay and conditions, which will include the terms of the STPCD that was in force at the time of the conversion. However, for new teachers, academies can set their own non-standard pay and conditions.
Although the vast majority of academies have continued to abide by the STPCD, there may be times when changes are appropriate. However, an academy cannot simply change teachers’ terms and conditions as and when they want and it will therefore be more difficult to introduce change for any existing member of staff. The general rule is that an employer cannot unilaterally change an employee’s contract. There are several options available to an academy in this scenario, but attempting to change pay and conditions can often be problematic.
The most viable option is likely to be agreeing a variation with employees. If the academy recognises the teachers’ unions, this will generally involve collective bargaining with unions. The extent to which the unions will become involved will depend on whether they are recognised only for information and consultation purposes, or whether they have full negotiating rights. The scope of collective bargaining may also vary depending on whether the unions have a mandate which covers all staff policies or is limited to certain terms and conditions. Any attempt to move away from STCPD is likely to involve negotiating with unions, given this is a fundamental change.
In some circumstances, for example where a union is only recognised for information purposes, it will be necessary to consult direct with individual teachers. If a teacher does not sign a new contract, but continues to work (without protest), they may be deemed to have accepted the new terms through their conduct. However, as a general rule, it is risky to take silence as confirmation of acceptance. If a teacher makes clear that they object to the changes within a reasonable period of time, they will not be bound by the change − teachers may also become unhappy with the changes, this may lead to resignation and or claims for constructive dismissal. This is why any change to contractual term needs to be handled very carefully, but it may still be worth considering whether this is worthwhile in the long-term.
Another option for employers is to utilise variation clauses within contracts, which allow an employer to alter certain terms and conditions. This option will not be open to academies currently operating under the STPCD, but it is worth considering whether to add such a clause into new contracts in future.
Academies have the chance to move away from traditional pay and conditions and there may be real benefits in doing so, which outweigh the potential disruption caused in implementing this change. The safeguarding provisions of the STPCD in particular can be problematic. If a teacher’s salary is reduced as a result of redundancy or re-organisation (for example, a reduction in the number of leadership posts), the safeguarding provisions protect their pay entitlement for up to three years. This can undermine the purpose of restructuring by preventing immediate costs savings.
It is worth considering the commercial implications of moving away from the STPCD – it may be damaging to be the only academy in the area not following the STPCD but conversely could give you an edge over other academies if you are offering a favourable alternative.
Whilst some teachers may find a move away from the STPCD unsettling, you may be able to achieve this as part of an overall review of your policies and it may be worth offering a more favourable pay scale, or incentive system, in order to move away from the safeguarding provisions.
If an academy does wish to make changes, it is important to consider the potential consequences carefully and take advice early on, not least because this may be strongly resisted by trade unions.
For more information please contact Bethan Jones on bethan.jones@michelmores.com or 01392 687438