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Helen Watson: "An academy needs to be run far more as a business"

Governance and employment law: what you need to know

Helen Watson from Aaron & Partners gives an overview of legal responsibilities for new academies

Posted by Stephanie Broad | January 11, 2016 | Law, finance, HR

Following an academy transfer, responsibilities change overnight. There is often a complete lack of awareness of this, which can be both dangerous and costly. An academy needs to be run far more as a business and it is vital that the head teacher and governors are properly prepared and advised for this, both in terms of understanding their Corporate Governance role and also their responsibilities and liabilities with regard to Employment Law.” 

Corporate Governance – what governors need to know

Regarding Corporate Governance, there is a need to ensure the school governors are properly trained and provided with clear reference materials to ensure they are fully aware of their new ‘director’ duties and obligations and the liabilities that go with being a governor in this governance structure. 

The recent publication of the updated Governance Handbook from the Department for Education contains significant revisions and by removing the term “governing body” from the handbook and replacing it with “governing board” it emphasises that this guidance is equally applicable to academy trustees. 

All boards, whether in the maintained or academy sector and no matter how many schools they are responsible for, have three core functions:

1.     Ensuring clarity of vision, ethos and strategic direction.

2.     Holding the head teacher to account for the educational performance of the school and its pupils, and the performance management of staff.

3.     Overseeing the financial performance of the school and making sure its money is well spent.

As well as having clear governance structures and robust financial and business planning processes, a few examples of the core features of effective governance include the importance of the board having: 

  • The right people with the necessary skills, time and commitment, and sufficient diversity of perspectives to ensure internal challenge.
  • Clear separation between the strategic and operational in terms of the role of the board and its school leaders.
  • The support and advice of a company secretary.
  • Processes for regular self-evaluation, review and improvement including; skills audits, training and development plans, and independent external reviews as necessary.

Boards are responsible for identifying and securing the induction and other ongoing training and development that governors need. As part of induction and continuous development, effective boards encourage every governor, especially those new to the role, to make the most of the resources and guidance available.

Good boards’ code of conduct should include an expectation that governors undertake whatever training or development activity is needed to fill any gaps in the skills they have to contribute to effective governance. Importantly, this includes their ability to understand and interpret educational and financial performance data.

Governors should be mindful that in exercising all their functions, they must act with integrity, objectivity and honesty and in the best interests of the school; be open about the decisions they make and the actions they take and be prepared to explain their decisions and actions to interested parties.

Employment Law and what it means for academy trusts

  • Every head teacher, teacher and governor needs to understand their responsibilities in terms of employment law policies and procedures. They also need to understand what is set out in their terms and conditions of employment and the school employee handbook and what roles they need to play individually in these procedures to avoid grievances/short and long term sickness absence/ bullying and harassment and of course tribunal claims.
  • Academy trusts need to put in place appraisal processes for teachers, determine their approach to teachers’ pay and conditions and may also delegate the approval of disciplinary and grievance procedures.
  • All academy trusts should have appropriate procedures in place for whistleblowing. The board need to ensure that staff and governors alike are aware of to whom they can report their concerns, and the way in which such concerns will be managed.
  • For the majority of work in schools, academy trusts must obtain, for all new appointments, an enhanced Disclosure and Barring Service (DBS) certificate before, or as soon as practicable after appointment, normally via an umbrella body arrangement. If the work is within the scope of ‘regulated activity’ relating to children, the enhanced certificate will need to include information to confirm the person is not barred from working with children (barred list information). Where the person will begin work before the DBS certificate is available a separate barred list check must be obtained before work commences. 
  • When recruiting Newly Qualified Teachers (NQTs) the academy trust must be satisfied that the institution in which the induction of NQTs is being served has the capacity to support the NQT and that the head teacher is fulfilling their responsibilities.
  • The board should be aware that teachers must hold qualified teacher status (QTS) (unless the teacher satisfies one of the requirements or conditions specified in the Schedule to the appropriate regulations) as this is a requirement of their funding agreement. 

Helen Watson is Partner and Head of the Employment team at legal firm Aaron & Partners    

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