NB an update to this advice was provided 27 January 2020 and is available here.
We are aware of an issue with the formula used by some local authorities (LAs) to calculate holiday pay for term-time only (TTO) support staff. This issue has been brought to light by a change to the NJC National Agreement on Pay and Conditions of Service (Green Book)
which was updated to include detailed guidance for calculating pay for term-time only staff. This includes an advisory model calculation to ensure that the payment system for TTO employees is fair (and secure on equal-pay grounds) in comparison with all-year-round employees in the same organisation. There have also been claims for back pay from TTO staff in some affected authorities. There is no national formula for calculating the holiday pay for TTO staff, and there are over 18 different calculations in use. Many authorities will not be affected by this, but some will be.
This could result in significant financial liabilities in covering the additional cost of the back pay for affected staff. We firmly believe that these additional costs should not be met from existing school budgets. A recent case brought against Greenwich Council was settled prior to going to tribunal at a cost of £3.7 million. The council agreed to correct the formula and backdate pay to 1 January 2013. Read about the case here
It is our view that as the local authorities were responsible for issuing these calculations, and that schools and academies which used them did so in good faith, that the local authorities involved should cover the additional costs and not expect schools and academies to have to find these costs from their already overstretched existing budgets.
We have written to the Local Government Association to enquire what advice has been offered to local authorities and how any that have been affected by this are being identified. We have also made clear that we feel it would be unfair to expect schools to be responsible for any additional costs caused by this issue.
Local authority maintained schools affected by this issue should contact their LA HR departments for further advice on the implications for their staff and how the additional costs will be met.
Academies affected by this issue may face difficulties as they are no longer under local authority control. However, most of those academies will have followed their LA formula when they were maintained schools and subsequently as academies following the TUPE process. If you are the head of an academy which is affected by this issue, and you buy in your HR provision from your LA, then you should also contact your LA for further advice on the implications for your staff and how the additional costs will be met, as you have followed the advice of your HR provider in using this calculation.
Academies that have transferred their HR provision away from their LA, from the point of conversion, will need to seek advice from their current HR provider and may also wish to take legal advice on their liability in this matter.
If you are an ASCL member and you are a support staff member who is employed on a term-time only contract, and think you may be affected by this error, please contact our Hotline
for further advice.