Joining a MAT? Things to Consider Part 2 – TUPE

Posted By :
Comments : 2

This article is part of a series and continues on  from last week’s “Joining a MAT? Things to Consider Part 1

So you have made the commitment with a group of like-minded schools to form a MAT.

There are many things to think about:

  • applying to the Secretary of State for an Academy Order;
  • consideration of the make-up of the Trust; and
  • managing the actual process of conversion.

There is a long list of things to do in a very short space of time and so the tendency is to concentrate on the critical tasks for transfer that are outlined in your project plan.

In our experience we find that schools with aggressive timescales to conversion don’t always give full attention to the change management aspects.

This is a big change to the way in which you will work and operate the school and an even bigger change in the way you will collaborate with other schools in the MAT.  The way in which the relation between the schools will manifest itself is far too important to be left to evolve naturally, it needs detailed consideration and will impact on the whole strategic approach of the MAT.

Joining a MAT

We find that the initial stages of communication and consultation with staff that then lead on to Transfer of Undertakings (Protection of Employment) Regulations (TUPE) is an ideal time for Trustees of the MAT to start thinking of the way in which their responsibilities as the employer will be delivered and how the new ways of working can be raised and discussed with staff.  Trustees should consider carefully whether contracts and terms and conditions within the MAT will deliver the vision they have for their schools and will support the important partnership of schools across the MAT.

The transfer of staff is a defined procedure that isn’t always used to manage the change appropriately.  In all cases there is a statutory obligation on the current employer to inform employee representatives (i.e. the recognised union or if there isn’t one, elected representatives) of certain matters in writing.  These are:

  • the fact that the transfer is to take place;
  • the date of the transfer and the reasons for it; and
  • the legal, economic and social implications of the transfer for any affected employees and the measures (changes) which the employer envisages it will, in connection with the transfer, take in relation to any affected employees or, tell them if it envisages that no measures will be taken.

There is no longer a statutory obligation to run a full consultation unless there are proposed measures (changes) to employees’ terms and conditions.  The regulations do not define the term “measures” but they are likely to include changes to existing work practices such as pay rates, job descriptions, hours of work, recognition and collective bargaining.

If you are transferring into an existing MAT you should expect some support from the MAT with the TUPE process and representatives of the MAT should be prepared to visit the school and address staff at a meeting.  If you are a Local Authority (LA) school presently it is really the responsibility of the LA as transferring employer to organise the consultation with staff and unions.  However, many LAs no longer have the capacity or, find it difficult to meet the timescales set by the DfE for conversion.  Be careful if it falls to the MAT representatives to send out letters or invitations to the staff on behalf of the existing employer.

If the MAT you are joining has been in existence for some time their experience of TUPE may no longer be current.  In January 2014, changes to Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 gave more freedoms to change things.  Examples of these new freedoms include:

  • enabling changes to terms and conditions of employment post transfer where there is an Economic, Technical or Operational (ETO) reason for the change and the employee agrees;
  • removing automatic unfairness from dismissals (whether before or after the transfer) which occur as a result of an ETO reason entailing changes in the workforce;
  • enabling changes to terms and conditions where the variation is allowed for in the employee’s contract;
  • enabling changes to terms and conditions derived from collective agreements to take effect one year after the transfer, provided that, in overall terms, the amended contract is no less favourable to the employee;
  • establishing a static approach to the way in which collective agreements incorporated into the contract of employment operate post transfer by providing that changes to the collective agreement are not automatically incorporated into the transferred employee’s contract unless the transferee is a party to the collective bargaining machinery; and
  • allowing for the transferee to begin collective redundancy consultation under s 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 before the transfer takes place.

We would always advise getting some expert help from an HR adviser during TUPE but as a minimum your TUPE process should include the following steps.

  • Confirming the intention to TUPE and identifying any measures.
  • A consultation and engagement process.
  • One to one meetings with the most affected staff.
  • A due diligence process on employee data and on-going HR casework.
  • ETO- Legislation does however allow possible variations of contracts for:
    • Economic reasons – e.g. lower funding due to a falling roll;
    • Technical reasons – e.g. streamlining technical processes; and
    • Organisational reasons – e.g. change in curriculum requirements.
  • Identifying what a measure is.
  • Pension transfer for LGPS and TPS.
  • Letters to staff from current / new employer to confirm TUPE change of employer.

In the next briefing note (Part 3) we’ll consider how the MAT might use this stage to start an effective process of change management.