This is Section 2 of the Guide to the Law, as published May 2012.
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There are a number of issues that the school governing body will wish to consider in taking forward an application to convert to academy status.
1. There is a statutory requirement for the governing body to consult with interested parties. The TUPE (Transfer of Undertakings (Protection of Employment) Regulations require the school to consult staff but schools are otherwise generally free to choose how, and with whom they consult. We would expect schools to consult parents. Schools with a religious designation must consult their Diocesan Board or relevant religious authority.
Method and timing of consultation
2. Schools can consult in a number of ways which may include posting information on the school’s website, newsletters/meetings for parents and discussions with students. It is important that interested groups, individuals and organisations have a fair chance to respond and ask questions.
3. There is no set time for carrying out the consultation, although it will be useful to have discussions at an early stage to ensure that interested parties understand the proposed changes. The process must legally be complete before a funding agreement is signed with the Secretary of State.
4. The governing body must be in a position to confirm that it has consulted the appropriate persons, the dates on which consultation was carried out and that the views obtained were properly considered. Schools don’t need to provide documentary evidence of this as part of the application process, but will need to ensure it is available on request.
Equalities impact assessment
5. Under equalities legislation, public bodies are required to have “due regard” to the need to eliminate discrimination, promote equality of opportunity and foster good relations in the exercise of all their public functions. Schools should consider whether they need to carry out an equalities impact assessment in relation to their conversion to Academy status.
RESOLUTION TO CONVERT
6. The governing body must pass a resolution confirming that it wishes to convert to Academy status before the school can make a formal application. A majority decision in favour of conversion is required. In the case of voluntary aided or foundation schools, the school’s foundation and the trustees will also have to give their consent before the governing body can apply.
7. Academies are required to abide by employment law, although they have the ability to set their own pay and conditions. Immediate changes to the staff structure and operations do not normally happen but once open, the Academy Trust may consult with staff and their union representatives on changes to terms and conditions. The Academy Trust/governing body is responsible for setting the pay and conditions of Academy staff which allows governing bodies to be innovative in creating extra incentives for staff.
8. The Chair of Governors is responsible for ensuring that all appropriate CRB checks are carried out on all personnel who could potentially come into unsupervised contact with children, young people and vulnerable groups. This includes school staff, parents, governors, trustees and contractors. Academies are required to keep their own “central register” which contains all the evidence of checks carried out.
9. TUPE applies to all converting schools and should start as soon as conversion is proposed. The statutory obligation to consult lies only with the current employer of the affected employees, and then only if they themselves are taking measures which affect staff – there is no obligation to consult on the Academy’s measures. Schools which employ their own staff (e.g. foundation schools) will need to go through the TUPE process as there will be a change of employer from the existing governing body to the new Academy Trust. Governing bodies not otherwise involved in the process may consider consulting unions to foster good employee relations even though they are not legally obliged to do so.
WHAT LEGISLATION DOES THIS REFER TO?
Transfer of Undertakings (Protection of Employment) Regulations