All the right moves

Falling rolls will inevitably lead to reorganisations and school closures but the variety of employers now involved means the rights of staff are far less clear-cut, says Richard Bird.

When one assistant head in a rural school was told that there had only been two new pupils entering the infant class at one feeder school, his reaction was: "At last, all those lessons on contraception have paid off."

Wrong response! Falling rolls are back. In recent years 300 primary schools have shut and although the pattern is obscured in some areas by internal and external migration, the general trend is down.

This coincides with curriculum changes which once again put small schools at risk. In the early 1980s it was calculated that to offer a full curriculum an 11-16 school had to be 1,000-strong.

The National Curriculum radically changed the calculations and made small schools more viable.

The loosening up of the curriculum now and the statutory entitlement of every pupil to a wider range of subjects is likely to make some small schools less viable, particularly if they have to pay more than a marginal cost for their pupils studying subjects off site. So reorganisations and closures are inevitable.

More employers

What are the implications? In several ways the legal situation is significantly different from that of the 1980s.

There are more employers for a start. In the 1980s there were only the local authorities and the governors of voluntary-aided schools. Now there are also the governors of foundation schools and the sponsors behind academies.

This is important because, in law, if the employer does not change, anything that happens is considered simply reorganisation. That means that if a school closes, the entire staff can be considered redundant and dismissed with their minimum redundancy entitlement.

Some staff may be needed if the school to which the pupils are to be sent needs extra staff but there is no reason why this should include surplus school leaders.

The employer has duties to see whether there are alternative posts to be found but these duties have limits.

I have said 'in law', because there may be practical considerations, such as preventing defensive industrial action, which may persuade a local authority to come to some agreement on preferential severance terms and restrictions on the surviving schools' freedom to appoint.

However, this raises other issues because the appointment and dismissal of staff is no longer in the local authority's hands, as it was in the 1980s. It is with governing bodies, even though the local authority issues and holds the contracts.

The situation where a voluntary-aided school or a foundation school is involved is more complex. If there is a successor school and the local authority is the employer, there will be a transfer from one employer to another and the Transfer of Undertakings Protection of Employment (TUPE) Regulations kick in.

These say that the employees must transfer with their existing terms and conditions, unless there are economic, technical or organisational reasons for change unconnected with the transfer.

This applies with even greater strength to academies, where the employer and the school unquestionably constitute a new employer. There is some uncertainty as to the position when the local authority is itself the sponsor, or part-sponsor, of an academy.

Competition for schools

It might be thought that in areas where all schools are at present community schools and perhaps only one academy is planned there is no need to become interested in TUPE. This is to ignore the provision in the 2006 Education and Inspections Act (applying to England) for competitions for new schools.

The guidance makes it clear that certain kinds of reorganisation qualify as 'competition'. The local authority is only permitted to establish new community schools if it meets a quality standard. Many local authorities will not. Otherwise all new schools must be voluntary-aided or foundation. This will inevitably mean a transfer to new employers.

The complexity of the situation means that there will be a need for ASCL branches to be alert to any possibility of reorganisation and to get in early to establish a framework that protects members' interests as far as possible.

With the best will in the world, field and regional officers can only work within the framework that has been established locally.