legal by lanyuehua

VIEWS: 3 PAGES: 10

									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;
January 2006                   HR Personnel Service                              1
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    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.
5.4    There is a legal requirement that consultation must
January 2006                  HR Personnel Service                             2
        - 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.

January 2006                   HR Personnel Service                               3
       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
January 2006                    HR Personnel Service                              4
       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                 SELECTED       STAFF     TO    MAKE
       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
January 2006                    HR Personnel Service                                5
        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:
(i)     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.
(ii)    In the case of Voluntary Aided schools, the Governing Body will issue
        notice to terminate employment and inform Education Leeds of its
        decision.

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.
January 2006                     HR Personnel Service                               6
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    If the appeal is successful then:
(i)    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;
(ii)   in the case of Voluntary Aided schools, the Governing Body will issue
       withdrawal notice re-instating employment and inform Education Leeds
       of its decision.

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.

January 2006                    HR Personnel Service                               7
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.



January 2006                    HR Personnel Service                                8
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
January 2006                   HR Personnel Service                               9
       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




January 2006                     HR Personnel Service                                10

								
To top