Know your Rights

25 January 2016

Leader logoToo many of us are lackadaisical when it comes to our contracts of employment. We are excited at the prospect of a new job and give the paperwork only a cursory glance before signing.

It was less of an issue when a teacher’s terms and conditions were covered by the School Teachers’ Pay and Conditions Document (STPCD) and the Burgundy Book (conditions of service). The sickness and redundancy entitlements were fairly well understood and the same arrangements applied to everyone in the maintained sector.

However, the introduction of academies changed the landscape. Although the vast majority of stand-alone academies and multi-academy trusts (MATs) adopt the provisions in the STPCD and Burgundy Book, too often staff find themselves without some of the entitlements they were expecting, primarily because they have lost continuity of employment/service.

Here are a few of the key things to look out for before accepting and signing a new contract (and to double-check in your existing one).

Continuity of employment
When you enter into a new contract of employment with an academy, your continuity of employment will normally be the date of commencement of the contract (although see below regarding redundancy).

This is extremely important because it means that you will not have the right to bring a claim to an employment tribunal for unfair dismissal until you have completed two years’ service. During this period the employer can dismiss you quite easily unless you are able to establish that the dismissal is for discriminatory, whistleblowing, trade union activity or health and safety reasons.

One way to protect yourself is by seeking a lengthy notice provision. As a rule of thumb the more senior the position the longer the notice period. If you can negotiate six or even 12 months, it will give you greater security, although bear in mind that you will normally have to give the same notice period if you wish to move jobs.

Sick pay
Any previous service in a local authority (LA) maintained school will only count towards contractual entitlements such as sick leave and pay if the academy recognises service at other schools. So when applying for a job in an academy (outside of a Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) transfer process) you should check with them what arrangements they have in place.

If they don’t recognise previous service, you are likely to be starting from scratch. For sick leave you would be entitled to 25 days’ full pay and half-pay for 50 working days during the first year of service after completing four calendar months.

Similar issues may arise when moving from an academy to an LA maintained school. Again, the period of employment at the academy will not automatically be counted unless the authority has agreed to recognise service in academies.

As far as the academies are concerned all is not lost, even if they don’t offer continuity of service automatically. As with all pay and conditions elements you should not be afraid to see if there is room for negotiation. If they really want you then they may well be prepared to offer better terms.

Maternity leave
Entitlement to maternity leave and pay is another area where staff too often fall foul, as it always depends on continuous service. If you think you may need this, check out the position with regard to your entitlement before accepting a new post.

Redundancy
Academies are listed on the Redundancy Payments (Continuity of Employment in Local Government, etc.) (Modification) Order 1999, as amended. The Modification Order provides that where an employee moves employment between any of the bodies listed on the order, without a break in employment, then all previous continuous service will be recognised for the purposes of calculating redundancy pay.

Independent schools are not covered by the Modification Order.

Probation period
More and more academies are using probation periods. Where these are in place an employer may argue that you can be dismissed without warning, so the permanent status of the role does not come into force until after the probationary period ends.

However, the employer must still give you whatever notice is provided for in the probationary period and if they do not do so you may be able to bring a claim for wrongful dismissal. What constitutes an unsuccessful probation period will be for the employer to define and will not usually be subject to the usual capability and disciplinary procedures, so be cautious about contracts that include such a clause.

For advice on contracts of employment contact ASCL’s Legal Department via Gillian Rawson at Gillian.Rawson@ascl.org.uk

Sara Ford is ASCL Pay, Conditions and Employment Specialist