Restructuring and redundancy

The following advice from ASCL's pay and conditions consultant and solicitors has been kept generic and is very much a summary, as the law in this area is not entirely straightforward. Members are urged to get specific advice from the ASCL hotline before taking action, should they come into conflict on this issue.

In the majority of schools, the transition process to TLRs is happening smoothly, and ASCL members are to be commended for this. However, we have been alerted to some cases of difficulty, especially regarding the loss of a post of responsibility.

It is incumbent on heads to manage the loss of a post or a post of responsibility, following a revision of the school's staffing structure, sensitively and with due regard for the impact of any changes on individual teachers.

Both the RIG and the Welsh Assembly guidance, which it should be remembered are non-statutory, state that redundancies should be avoided, especially in cases where they are precipitated by increases in staff:

"As it is not the intention of the partners that this process be managed through compulsory redundancy, headteachers should be mindful of the budget implications of an external advertisement if the appointment will over the whole period of transition increase the size of the teaching staff." (RIG para.38)

"This process should not be managed through compulsory redundancy and headteachers should be mindful of the budget implications of an external advertisement if the appointment will over the period of transition increase the size of the teaching staff." (Wales Circular 32/2005 para.45)

In addition, the STPCD provides for teachers' salaries to be safeguarded for up to a maximum of three years from the point at which a 'loss' begins and for continued employment as a teacher, with or without a TLR post.

None of the above, however, overrides teachers' rights in employment law and if the alternative post that is offered is not deemed suitable by the teacher (having regard to the terms and conditions, job description, status and bearing in mind any salary safeguarding), he or she has a right either to say that the employer should make him/her redundant or to accept the alternative post.

When stating that an alternative post is not suitable, teachers will have to balance the benefits and disadvantages of redundancy against the security of continued employment, albeit at a lower salary. If the school accepts this view (or if it decides at the outset that it should make teachers redundant as a consequence of restructuring), it should follow the usual redundancy procedures.

In cases where such situations cannot be resolved internally (for example because the school thinks the new post is suitable and the individual does not), the individual can reject the offer of the new post and can refer to an employment tribunal (ET), which will determine whether the post is suitable - and so also decide either that the employee was in truth redundant or that the employee should have accepted the alternative post.

The points set out below reflect the process described above:

• Heads are able to make teachers redundant following a revision of the staffing structure.

• A teacher who feels that the alternative post being offered is not suitable may say so and state that he/she should be made redundant.

• Where such difficulties cannot be resolved internally, the issue may be referred to an ET.

• The ET will determine whether an alternative post is suitable.

• If it is not suitable, the school will have to pay a redundancy payment 6. A teacher may accept an alternative post even if it is not suitable.

Again, members who find themselves at either end of a conflict regarding this issue are urged to call the ASCL hotline on 0116 299 1122 for specific advice.