Download redundancy in schools: an overview of legal

REDUNDANCY IN SCHOOLS: AN OVERVIEW OF LEGAL REQUIREMENTS
This document should be read in conjunction with "Working Together to Avoid
Compulsory Redundancy".
The term 'Education Leeds ' has been used throughout in place of the term
'LEA' for whom it acts as an agent.
1.
INTRODUCTION
Unfortunately, some schools' budgets will not always sustain the existing
staffing complement. Steps will need to be taken to deal with the problem
– a rising, unaddressed deficit is in no one's interests. However, with
careful management, continuous consultation with Education Leeds, staff
and trade unions, and a willingness to see all schools as part of the wider
Leeds community, compulsory redundancy can be avoided. Staff are a
valuable asset, and are needed by the service as a whole. Schools which
follow this guidance, and the spirit of "Working Together to Avoid
Compulsory Redundancy", are likely to be seen as good employers.
2.
WHAT IS REDUNDANCY?
2.1
A redundancy is simply the deletion of a post which is no longer
required. In schools, this in practice usually arises because the post(s)
can no longer be afforded, and is identified as the post (or posts) least
necessary to the efficient functioning of the school. The recommended
method of selection for redundancy is set out at paragraph 7.
2.2
It is sometimes assumed that the problem can be resolved simply by not
renewing one or more fixed-term contracts. This is likely to be illegal,
as staff on continuous temporary or fixed-term contracts with the same
employer (in community schools, Leeds City Council) for more than 12
months have the same rights to be made redundant fairly as other staff
on permanent contracts. They therefore have to be treated in the same
way. This highlights the need to use temporary contracts only when
strictly appropriate.
3.
IS REDUNDANCY NECESSARY?
3.1
The aim should always be to avoid redundancy if at all possible.
Alternatives include:
-
making the necessary savings elsewhere;
agreeing with Finance to reduce the deficit over a period (up to 3
years);
not filling any vacancies;
offering part-time or job-share to existing full-time staff;
redeployment
voluntary early retirement;
voluntary severance;
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3.2
Great care needs to be taken by Governing Bodies at this stage, as they
might be challenged if it is seen that there has been neither full
consideration of all the alternatives nor consultation with staff.
4.
TIMESCALE
4.1
Governors should allow the maximum possible time for the options
outlined in paragraph 3 to be looked at. Rushed decisions should be
avoided.
4.2
In the case of teachers, Governors need to observe the
resignation/dismissal dates set out in the national conditions of service
(the "Burgundy Book"). See paragraph 12.
4.3
For support staff, the appropriate notice periods must be observed. See
paragraph 12.
Full consultation with Personnel should ensure that any pitfalls are
avoided. It should be noted that formal consultation does not begin until
the Notification of Redundancy Consultation Document (Section 188
letter) has been issued.
5.
CONSULTATION WITH TRADE UNIONS
5.1
Although the law only requires formal consultation with trade unions
where it is proposed to dismiss more than 20 employees at an
establishment within 90 days, it has been well-established good practice
in Leeds to consult in all cases. Personnel Advisers will advise on
arrangements for consultation with the recognised trade unions.
5.2
Formal consultation will need to be prepared and must include the
following information:
a) the reasons for the proposal (including budget figures);
b) the number and descriptions (i.e. teachers or support staff) of
employees it is proposed to dismiss on grounds of redundancy;
c) the total number of employees in the school;
d) the proposed method of selecting the employees to be dismissed
See paragraph 7.
e) the proposed method of carrying out the dismissals, including the
period over which they are to take effect;
f) the proposed method of calculating redundancy payments.
5.3
5.4
What is Consultation?
Essentially, it is
- the provision of information which is clear and detailed enough to
enable the Trade Unions to understand and consider the proposals;
- an invitation to them to discuss and comment on the proposals,
- a readiness to consider in good faith any comments or suggestions
made before a formal decision is taken.
There is a legal requirement that consultation must
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- address ways of avoiding or reducing redundancies;
- consider how to mitigate the effects of any redundancy
dismissals;
- be aimed at reaching agreement.
5.5
The information set out in 5.2 must be given to an authorised
representative of the union or sent by post to an address notified by the
union. Where possible it is helpful to the process if this information is
received by the trade unions prior to a formal consultation meeting with
staff.
5.6
The Governing Body must consider any representations made by the
union and give reasons if any point is rejected. It should also comply with
any reasonable request for further relevant information, e.g. budget
details, pupil numbers, staffing numbers and structures. This information
should be provided in writing.
5.7
Recognised Trade Unions.
Trade Unions recognised by the Leeds LEA are listed below.
Representing Headteachers: National Association of Headteachers
(NAHT), National Association of Schoolmasters Union of Women
Teachers (NASUWT), National Union of Teachers (NUT), Association of
School and College Leaders (ASCL)
Representing other teachers: Association of Teachers and Lecturers
(ATL), National Association of Schoolmasters Union of Women Teachers
(NASUWT), National Union of Teachers (NUT).
Representing support staff: GMB, National Association of
Schoolmasters Union of Women Teachers (NASUWT), Transport and
General Workers’ Union (TGWU), UNISON.
PAT is a trade union not recognised by Leeds City Council. However the
City Council and Education Leeds work as constructively with this union
as with those that are recognised.
5.8
If it is proposed to make more than 20 employees redundant, the
Governors are legally required to inform the Department of Works and
Pensions.
6.
CONSULTATION WITH STAFF
Governors need to ensure that, in addition to the consultation with trade
unions outlined in paragraph 5 above, there is full consultation with staff,
both collectively and individually. It needs to be remembered that some
staff are not members of a trade union but will have the same right to be
fully consulted as those who are members. Although formal consultation
begins with the issue of the “Section 188 Letter” good practice would
indicate the need to begin consultation as early as possible and to keep
staff informed. It is advisable to minute consultation meetings with staff
so that there is an accurate record of all the information disclosed and
discussed should this prove contentious at a later date.
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Individuals at risk of redundancy will not be identified until the relevant
selection procedures have been agreed.
7.
SELECTION FOR REDUNDANCY
7.1
This is the most difficult phase of the redundancy process. Fairness and
objectivity are absolutely essential if Governors wish to avoid being
challenged, whether at dismissal hearings, grievance hearings, or
Employment Tribunals.
7.2
The recommended procedure is as follows:
1. Selection Criteria. For practical reasons the task of drafting selection
criteria may be assigned to the Headteacher and a nominated
Governor. After consultation with trade unions and staff the full
Governing Body should be aware of and approve the school’s finally
agreed selection criteria. .
2. The full Governing Body will refer the task of determining whether
staffing reductions are necessary, including looking at other
options, to an appropriate committee (e.g. the Nomination
Committee). This committee will consist of not fewer than three
Governors. The committee will be advised by the Headteacher.
3. If the committee determine that redundancy is necessary they will
apply the Governing Body's agreed selection criteria to nominate
staff who are surplus to requirements.
4. The committee inform the employee of their selection and provide an
opportunity for the individual to make representations about their
proposed selection. See paragraph 8 below. The employee will also
be made aware of their right of appeal to an appeal committee.
Employees should be recommended to seek the support of their trade
union. Personnel Advisers should be involved at all of these stages.
7.3
Since the school will be losing staff, the revised staffing structure is the
key to the fair and objective application of the criteria. The structure sets
out the curricular and organisational priorities of the school. It therefore
reflects the posts the school will need, not the individuals who will fill
them.
7.4
Criteria can be weighted but care needs to be taken to apply such
weighting fairly and consistently. A recommended model is available as
part of the ‘Additional Information Pack’ related to this document.
7.5
Other criteria can be used, but are likely to be challenged by trade unions
if they are not seen to be fair and objective. Legislation prohibits the use
of the following:
- race, gender or disability;
- reasons related to pregnancy or maternity;
- membership or non-membership of a trade union or participation in its
activities.
7.6
Evidence gathering is critical to the application of fair and objective
criteria. It is appropriate to check records held within school relating to
individuals’ qualifications and experience. This evidence then needs to
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be verified with the individuals affected. Individuals themselves may
wish to submit their own evidence and to score themselves against the
criteria. The Headteacher/delegated person should apply the criteria
based on the knowledge and information held within school, plus the
individual’s own self assessment, if this is available. A meeting then
needs
to
take
place
between
the
individual
and
the
Headteacher/delegated person during which scoring of evidence should
be discussed and agreed. The final scores are recorded and signed off
by the Headteacher/delegated person.
7.7
If, following the application of the agreed criteria, it proves impossible to
distinguish between two or more employees, length of service (the LIFO
or "last in, first out" principle) can be used. In Leeds, this is traditionally
calculated by reference to the length of continuous service with
organisations listed in the Redundancy Payments (Local Government
(Modification)) Order 1983, which covers Local Authorities, various other
public bodies, voluntary aided and similar schools. Other approaches
can be based on service with Leeds City Council or service with the
school. Governors should clearly define which approach they decide to
adopt and record this at the same point as approval of the final selection
criteria.
7.8
The Nomination Committee should rigorously examine the application of
the selection criteria. The Committee must satisfy itself that the criteria
have been applied fairly and objectively.
7.9
Care should be taken to ensure that decisions are not communicated to
staff piecemeal. Staff should be asked at the outset how they would wish
to have their nomination for redundancy communicated to them. For
example, either in person or in writing, at school or at their home
address. Anxiety is difficult to avoid, but ill-feeling can be minimised by a
determination to proceed in a spirit of openness and sensitivity.
8.
RIGHTS OF PROVISIONALLY
REPRESENTATIONS
8.1
In Community schools, staff who are provisionally selected for
redundancy have a statutory right to make representations to the
Governing Body , including oral representations if they so wish, and for
these to be taken into account before their selection is confirmed.
Similar arrangements apply to staff employed by Governing Bodies of
Voluntary Aided schools. Governors are advised to ensure that staff
feel their views will receive full and genuine consideration and that the
outcome is not pre-determined. Governors need to be seen to be
independent in this matter.
8.2
The Nomination Committee should arrange for any employee whom they
have provisionally selected for redundancy to be informed by the
Headteacher or the Chair of the Committee and offered the opportunity
to make representations in person to the Committee. The employee
should be given the right to be accompanied by their trade union or other
representative. The Headteacher should attend only to give advice and
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information. It is recommended that the Committee explains the reasons
for the provisional selection;
a) allows the employee or the representative to make representations;
b) clarifies any points arising;
c) gives full consideration to its provisional decision.
8.3
The Committee will either confirm the original decision or select another
employee for redundancy. In the latter case, that employee must be
informed and given the same opportunity to make representations.
9. NOTICE TO TERMINATE
9.1
Notice to terminate is issued by Education Leeds in the case of
Community schools, and by the Governing Body in Aided schools.
9.2
If the Staffing Committee confirm the original decision, the Head Teacher
will put this in writing to the individual (s) affected. In order to formally
terminate employment the following action is also required:
in the case of Community schools, the Governing Body must notify
Education Leeds, which will within 14 days, issue notice to the employee
to terminate employment.
In the case of Voluntary Aided schools, the Governing Body will issue
notice to terminate employment and inform Education Leeds of its
decision.
(i)
(ii)
9.3
Formal notice must be issued in accordance with the following
timescales:
(i)
Support Staff
Statutory entitlement is for 1 week’s notice per year of continuous service
up to a maximum of 12 weeks (and subject to a minimum of 1 month for
most school support staff);
(ii)
Headteachers
3 months notice (4 months in the summer term) ending on 31 December,
30 April or 31 August as appropriate;
(iii)
Other Teachers
2 months notice (3 months in the summer term) or statutory notice if that
exceeds contractual notice – see (I) above - ending on 31 December, 30
April or 31 August as appropriate.
9.4
Where an employee becomes surplus to requirements but is not
employed to work solely at that school, it is for Education Leeds rather
than the Governing Body to decide where there is a redundancy.
Education Leeds must consider whether the employee can be
transferred elsewhere; if not, Education Leeds must institute redundancy
procedures.
9.5
The search for alternative employment should begin once the employee
has had confirmation of their nomination for redundancy and should
continue through out the notice period.
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10. RIGHT OF APPEAL AGAINST SELECTION FOR REDUNDANCY
10.1
Employees have the right to appeal against a decision to select them for
redundancy, in addition to the right of representation referred to in
paragraph 8 above. If, following representation the original selection is
confirmed (or if the employee does not make such representation), the
Headteacher should notify the employee in writing of the decision to
select them for redundancy and of their right of appeal. As a guide, it is
recommended that the member of staff be given 5 full working days in
which to lodge an appeal and at least a further 5 full working days before
the appeal hearing is held.
10.2
When lodging an appeal, employees are not obliged to state their
grounds for appealing, but in practice they will usually believe that the
Nomination Committee has applied the criteria either incorrectly or
unfairly.
10.3
The appeal should be heard by the Staff Appeals Committee, consisting
of three governors not involved in the original decision. This committee
should confine itself to a careful and objective examination of how the
Nomination Committee applied the criteria. It is important that appeals
committees are seen to be independent.
10.4
A recommended format for the conduct of the hearing is available as part
of the ‘Additional Information Pack’ related to this document.
10.5
If the appeal is successful, the Appeals Committee will need to consider
whether to select another employee for redundancy, in which case the
process of selection, opportunity for representation, notification of
redundancy, notice to terminate and right of appeal must be repeated.
10.6
(i)
If the appeal is successful then:
in the case of Community schools, the Governing Body must notify
Education Leeds, which will within 14 days, issue a withdrawal notice to
the employee re-instating employment;
in the case of Voluntary Aided schools, the Governing Body will issue
withdrawal notice re-instating employment and inform Education Leeds
of its decision.
(ii)
11.
ALTERNATIVE EMPLOYMENT
11.1
The Governing Body must consider whether alternative employment is
available at the school for an employee who is made compulsorily
redundant. There is no requirement to create a job specifically for this
purpose, or to offer a job which does exist but for which the employee is
objectively unsuitable. However, the employee must be fully considered
for any appropriate vacancy.
11.2
Leeds City Council as the employer has a responsibility to seek
alternative employment for nominated staff based in a maintained school.
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11.3
In either case, the Personnel Team of Education Leeds will co-ordinate
attempts to find alternative employment (or Redeployment). The aim will
be to avoid compulsory redundancy for any member of staff.
11.4
Employees declared redundant will be assessed, via a “skills audit”, with
a view to matching them to vacancies which other Leeds schools or City
Council departments may have.
11.5
Governing Bodies may be asked to consider appointing a redeployment
candidate to fill either (i) a current vacancy in their school, or (ii) a post
currently occupied by an employee who wishes to apply for voluntary
redundancy or, following agreement with Education Leeds, to take early
retirement.
11.6
Support grants are available to schools which agree to employ
redeployees.
(See “Working Together to Avoid Compulsory
Redundancy”, paragraph 10)
11.7
Governing Bodies are legally required to notify Education Leeds of
teaching vacancies they wish to fill (except those of less than four
months’ duration). The collective agreement “Working Together to
avoid
Compulsory
Redundancy”
commits
governors
to
consideration of any redeployment candidate put forward by
Education Leeds. In order to assist with the redeployment programme,
managed by Education Leeds, they are also requested to inform
Education Leeds of any support staff posts. If colleagues who have had
to go through the redundancy procedures are not ultimately to be made
compulsorily redundant, the active support of the Governing Bodies of all
Leeds schools in this process of redeployment is essential.
12.
TIME OFF WORK
12.1
An employee who is given notice of dismissal on grounds of redundancy
and who has at least 2 years’ continuous service by the end of the notice
period has a legal right to reasonable time off with pay during working
hours to seek new employment or to arrange retraining. What is
‘reasonable’ depends on the circumstances of the particular case.
Employment Tribunals can award up to two-fifths of a week’s pay as
compensation to an employee who is refused reasonable time off.
13.
REDUNDANCY PAYMENTS
13.1
Subject to the figure prescribed by law as a minimum, and under
statutory regulations as a maximum, it is for Governing Bodies to decide
on the size of a redundancy payment. However, in practice Leeds
schools have always followed the LEA’s scheme.
13.2
Employees nominated for redundancy will receive from Education Leeds
an estimate of their redundancy payment under the LEA scheme plus an
estimate of any pension benefits they might be entitled to.
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13.3
Where an employee is offered similar alternative employment and
unreasonably refuses to accept it, there is no right to a redundancy
payment.
13.4
Where a redundant employee is offered a new job on different terms and
conditions, but which is deemed to be suitable alternative employment,
and unreasonably refuses to accept it, there is no right to a redundancy
payment. However, in such cases the employee has a statutory right to
a trial period of 4 weeks in the job during which to assess suitability. If
the new job requires the employee to be retrained, a longer trial may be
agreed in writing in advance. If, after a trial period, the employee refuses
to accept an offer of alternative employment, it may be possible to allow
an extended trial period or to seek another redeployment opportunity.
Alternatively, a redundancy payment would be made if the job is
unsuitable or the employee’s refusal to accept it is reasonable.
14.
PLANNING TIMESCALES
Since the possibility of staffing reductions is normally, though not
exclusively, linked to budgetary considerations, the planning and
implementation by schools of any changes in their staffing requirements
needs to take account of the timing of Education Leeds and Leeds City
Council’s annual budget process. The key dates in this are as follows:
Autumn Term: Governing Body undertake budget review and update
three year financial plan based on new pupil numbers and revised pupil
number projections. This will inform governors of any potential action
that they will need to take for the following academic years.
November: Government announces next year’s draft financial settlement
for Leeds City Council;
Late December: Government confirms financial settlement for Leeds
City Council
Mid January: PLASC pupil number return completed, Governing Body
review projection and possible actions in light of budget briefings, taking
into account any overall budget uplift or cut based on financial settlement
for Leeds City Council.
Late February/early March: Council finalises its overall budget
Mid-March: Schools informed of final budgets
By making use of the three-year projection model, Governing Bodies are
able to predict a likely need for cost savings, possibly involving staffing
reductions, well before it is notified of its budget for the next financial
year, e.g. where pupil numbers are falling, or specific grant funding is
coming to an end. The timescale involved in carrying out reductions in
staff levels (see para.4) is lengthy; unless the process is started as soon
as possible, the scope for savings may be reduced. Ideally, Governing
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Bodies should consider their staffing position for the following year in the
Autumn, in order to examine ways of achieving savings to avoid
redundancy. In any event, they will need to discuss the school’s financial
position in mid-December or early January and make provisional plans
for the next year’s budget.
15.2
Some circumstances may enable a Governing Body to predict a likely
need for cost savings, possibly involving staffing reductions, well before it
is notified of its budget for the next financial year, e.g. a large fall in pupil
numbers. The timescale involved in carrying out reductions in staff levels
(see para.4) is lengthy; unless the process is started as soon as
possible, the scope for savings may be reduced. Ideally, Governing
Bodies should consider their staffing position for the following year in the
Autumn, in order to examine ways of achieving savings to avoid
redundancy. In any event, they will need to discuss the school’s financial
position in mid-December or early January and make provisional plans
for the next year’s budget.
Published by: HR Personnel Service of Education Leeds
Originator: Kay Margerison/Nicola McArthur
Working Together to Avoid Compulsory Redundancy agreed at: School
Based Staff Collective Agreements meeting held on 27/01/06
Distributed to: All Schools in Leeds
Review date: November 2006
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