Risk on the horizon

School life has hardly been tranquil in recent years but one area of concern has gone mostly off the radar: reorganisation because of falling rolls. It is now coming back on screen up and down the country and many ASCL members' jobs could be at risk.

While the government continues to go on about powers to open new schools, the real issue facing many authorities in the coming years will be school closures due to falling rolls.

Local authorities must give consideration to this in strategic planning under Building Schools for the Future. Many BSF bids contain proposals for amalgamations and closures. Some bids include the replacement of existing schools by an academy.

Where do members of a leadership team stand when their school closes or amalgamates? The lawyer's answer, as could be expected, is that it will depend upon the circumstances of the individual case. However, it is possible to outline some general principles.

There are broadly three situations which can arise. A school is surplus to requirements and closes; its pupils are redistributed to nearby schools. A school is not surplus to requirements but closes for other reasons and is succeeded by a school on the same site or serving the same catchment - possibly an academy. Finally, two or more schools are amalgamated, on one of the existing sites or on a new site, and admission policies are altered to accommodate the changes.

Job protection

Does employment continue and does it continue on the same terms? The second question is relatively easy to answer. Assuming employment continues, it will be subject to the Transfer of Undertakings Protection of Employment (TUPE) regulations.

The TUPE regulations (which are being published in revised form this year) protect both terms and conditions and benefits for which one qualifies by length of service, such as pension rights. This applies to academies as well. Existing terms and conditions may not be waived, although they may in due course be varied by agreement and entirely new staff may agree different terms.

Whether employment necessarily continues, however, is an entirely different matter. Where a school ceases to exist, the contract ends. The governors will have to dismiss staff and follow the proper terms of notice and requirements for redundancy, including consultation and attempts to find alternative employment.

Where there is a successor school, the head cannot be guaranteed employment as it is a statutory requirement that all headships be advertised nationally. The position of other members of the leadership team is more equivocal - national advertisement is not obligatory.

When there is a transfer of employers, staff may not be dismissed for a reason connected with the transfer. However, it is possible to dismiss for economic, technical or organisational reasons unconnected with the transfer.

This leaves much room for argument but the essential test is whether, had the transfer between the two employers not taken place, the changes would have had to happen anyway.

If the people concerned do not have the skill set that matches the needs of the successor school, it may be possible to legally dismiss them. The same applies for an amalgamation.

In the 1970s local authorities negotiated redeployment agreements with unions and enforced them on schools. However these powers of appointment and dismissal have now transferred to governing bodies. A local authority cannot say "appoint this teacher or from this pool of teachers".

An important consideration for local authorities, though, is that they cannot allow children to suffer as a school drifts leaderless because the head and leadership team have jumped ship in search of secure employment.

Union negotiation

Any sensible local authority will seek to reach agreements with unions and governors to minimise the problem. It should be possible to negotiate ring-fencing for posts below headship, generous terms for heads who stay on to organise an orderly and positive closure, and agreements with successor schools on stepping down and salary protection.

The only way this will happen, of course, is when there is a strong local organisation to negotiate. This is where the ASCL branch secretary can play a significant role. ASCL members facing 'rationalisation' will lose out if they do not make sure they have an ASCL branch secretary who can conduct robust and positive negotiations with the authority.

ASCL headquarters can help with advice, and field officers can deal with individual cases, but in a situation that is authority-wide, only members in that authority are in a position to create the essential framework.

By Richard Bird, ASCL Legal Consultant