Joining forces?

Mergers and reorganisations have traditionally been a worry for colleges more than schools but, with falling roles and pressure to improve standards, schools are increasingly coming under pressure. Members can look to ASCL for support.

Takeovers happen all the time in business and industry. Firms are merged; inefficient operations are shut; people leave bruised, or cushioned by large severance payouts.

College members will historically have been more familiar with this process than schools. Among colleges, the main drivers for mergers have been economy of scale and the desire for growth. However, the current FE and Training Bill may well presage more intervention on attainment grounds, as powers to intervene in colleges and to remove principals are transferred to the Learning and Skills Council.

For schools, the drivers for merger or reorganisation are more diverse, as are the options: for instance, a school leadership team may find that the governing body has decided the school needs a structural collaboration with another school.

Or the initiative may come from the outside. For a school in an Ofsted category the takeover may be the result of old or new intervention powers. Falling rolls may put the school at risk; or the price of a place in a wave of Building Schools for the Future may be a school's replacement by an academy.

The 2006 Education and Inspections Act establishes a new intervention criterion of 'children failing to make adequate progress'. Draft guidance suggested that schools in the bottom quartile, schools which fail 'groups of children', or schools which are weak in a core subject could be fair game.

While the bottom quartile criterion may not survive the universal ridicule of everyone with an elementary grasp of GCSE maths, the message is clear for those in schools alleged to be 'coasting'. As in business, increase your assets or risk takeover.

Warning notice

If the trigger for reorganisation is a warning notice from the local authority, the 2006 Education and Inspection Act allows the local authority to compel collaboration.

This may force the head to collaborate with an executive head (although this role still has no distinct recognition in legislation) or the head may be removed and the head of the other school seconded as acting head.

On the other hand, it may be felt that the head has insufficient support or challenge from governors. Legislation offers a range of options: appointing additional governors, replacing the governing body completely with an interim executive board, federating the schools under a single governing body (on which the heads of both schools sit), or withdrawing delegation.

Where the governing body is not likely to be able to attract governors of the right calibre, the education act allows a trust to take over. The trust may appoint a majority of the governors in perpetuity. Hopefully, the loss of local accountability will be outweighed by the quality of governance the trust appointees will bring.

Legal consequences may not be immediately obvious. For example, withdrawal of delegation takes back schools' control of the budget but also returns all appointment and dismissal powers to the local authority.

In extreme cases, a school may be closed or replaced. If it is closed, pupils will either be absorbed into another school or transfered to a new school, for which there must be a competition. Unless the local authority is in the highest category, a new school will be foundation or aided.

Members' rights

What are the rights of ASCL members? Not to keep their jobs whatever happens; though due process has to be observed. If closures are intended, there are processes which the local authority must go through if it wishes to 'cease to maintain' a school. The 2006 Education and Inspections Act abolishes Schools Organisation Committees, but the schools adjudicator still acts as a longstop.

If the school closes, the 'enterprise' will generally be deemed to have been transferred and there will potentially be rights under TUPE (the Transfer of Undertakings Protection of Employment regulations). However, the protection of TUPE, though important, is limited. 

'Organisational' or 'economic' reasons can justify not employing someone or changing the terms and conditions; a surplus of senior leaders gives rise to both. Similar considerations affect redundancy compensation rules. Employers also can be impatient with formal capability processes if they believe leaders are under-performing.

In general, though, employers prefer to act in a way that is fair and reasonable. Deals can be made, and ASCL field officers are there to ensure school and college members get the best outcome. If that fails, ASCL's solicitors are available to help.

Far better, however, is to be wise before the event. Branch secretaries should be able to proactively negotiate sensible agreements and protocols with the local authority, which ensure that posts are ring-fenced and that the effect of reorganisations is not to put competent people out of work.

ASCL officers at headquarters are available to check proposals early in the negotiations so that the association's national experience can be brought to bear.

Richard Bird is ASCL's legal consultant