Baroness Sharp of Guildford (Liberal Democrat)
This is another amendment that relates to employment rights. It purpose is to rectify a clear and serious anomaly in the law arising from local management of schools and its resulting three-party employment structure for teachers and other school staff. The problem was clearly identified in the courts in the case of Askew v the London Borough of Ealing. The amendment concerns the exercise of powers where a school ceases to exist as a separate entity on the occasion of a merger with another school or of its closure following a fresh start initiative.
LEAs employ teachers other than those who work in voluntary-aided and foundation schools in the legal sense that they are party to contracts of employment. The governing bodies of community and controlled schools, however, have certain employment powers conferred on them by statute. Those powers are defined in the Education (Modification of Enactments Relating to Employment) Order 1999, for which Section 81 of the School Standards and Framework Act 1998 makes continuing provision, as powers of appointment, suspension and dismissal.
As governing bodies of community and controlled schools are not employers, there is no transfer of staff from one employer to another in school mergers in which the schools merging are both community or controlled schools, even though the undertaking of each school is transferring from one governing body to another. The effect is the same as if there were no TUPE protections. Teachers are dismissed from their school by reason of redundancy on closure and can do nothing but hope that they will be selected for posts in the new school, all of which are deemed to be vacancies. The issue was taken up with the right honourable David Blunkett, when he was Secretary of State, after the decision in the Askew v. London Borough of Ealing case. He was advised that his powers under primary legislation did not extend to enabling him to make the necessary changes by amending the Education (Modification of Enactments Relating to Employment) Order 1999.
An amendment similar to this was tabled by my honourable friend Mr Phil Willis in Committee and on Report in the other place. In his response on Report, the Minister, Mr Stephen Timms, said:
"First, the current arrangements for dismissals in community, voluntary controlled and community special schools, which are set out in schedule 16 to the School Standards and Framework Act 1998, require employing local education authorities to terminate the contracts of employees where their governing bodies have made determinations that they should cease to work at their schools. That requirement ensures that the employing LEA does not have to consider, in line with normal employers' duties, alternative employment options elsewhere in the authority area, including inquiries with other schools or services, in attempting to avoid redundancies. I understand the concern about that arrangement.
"The provisions of schedule 16 will be moved to staffing regulations under clause 34. We shall consult on the content of those regulations. In doing so, we shall give attention to the drafting of the staff dismissal provision, so that governing bodies will be required to give LEAs notice of impending redundancies. We shall make it clear that LEAs will be subject to the same duties as they are for their other staff and have to consider alternatives to redundancies before resorting to terminating contracts...
"Secondly, I will give further thought to the doubt that now surrounds some transfers of staff to and from maintained schools, following the Askew judgment. That judgment was clear, but its terms and explanation raised some questions. The Bill may already clarify the employment position sufficiently to ease the problem, but I am prepared to consider it further".—[Official Report, Commons, 6/2/2002; col. 970.]
The amendment suggests a new formulation of the principle that might be more acceptable to the Government. However, we must know whether the Government will agree to use the opportunity to rectify the legal anomaly and put in the Bill a safeguard for teachers in such situations. Has the Minister thought further about the issue? I beg to move.